Standing Committee E

[Mr. Eric Illsley in the Chair]

Nationality, Immigration and Asylum Bill

Clause 63 - Matters to be considered

Rosie Winterton: I beg to move amendment No. 344, in page 34, line 36, at end insert—
 '(A1) An appeal under section 60(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant—
(a) has a right of appeal under section 60(1), and
(b) has specified grounds of appeal in accordance with rules under section 84.'.

Eric Illsley: With this we may take the following: Government amendments Nos. 345 and 346.
 Amendment No. 402, in page 34, line 42, leave out paragraph (b). 
 Amendment No. 432, in page 34, line 43, at end insert— 
 '(2A) Nothing in subsection (1) shall prevent an adjudicator from considering a claim for asylum or a claim that an act breached the appellant's human rights, whether or not raised in the statement.'.
 New clause 19—Adjudicator: determination of appeal

Rosie Winterton: The clause is equivalent to section 77 of the Immigration and Asylum Act 1999 in that it empowers the adjudicator to consider what are now called additional grounds—that is, further appealable matters that are raised in response to a requirement under section 74 of the Act to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system and the response to the requirement being made under clause 92. The adjudicator is not required, however, to consider matters raised in connection with a different application or appeal.
 Under the 1999 Act, the adjudicator has to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision, which follows the case law in the Ravichandran case. The clause extends the principle so that nearly all appeals are dealt with on the time of hearing basis. That has advantages for the one-stop system in that updated circumstances can be considered without requiring a new decision or appeal. The exception is appeals against refusals of entry clearance or a refusal of certificate of entitlement where the decision was taken abroad, because those are not one-stop appeals, and there is no question of removal in those 
 circumstances. There is no penalty for making a further application to the entry clearance officer based on updated circumstances, which are much easier to investigate in the country of origin than at a hearing in the United Kingdom, which is likely to have to be adjourned. 
 For the reasons that I set out, amendment No. 344 permits the adjudicator to consider all grounds of appeal no matter when they are lodged. If an application is refused it will often be sensible to enforce the requirement to disclose any reasons when we serve the refusal, to ensure that our information about the applicant's circumstances is completely up-to-date. It is important that the adjudicator is able to consider any additional reasons mentioned, even if the applicant is not asked to complete a statement until a refusal decision is made. 
 Government amendments Nos. 345 and 346 prevent the adjudicator from being asked to determine matters outside his competence. Amendment No. 346 restricts the appeal to those matters that can properly be raised at an immigration appeal. If the appellant's statement raises his entitlement to benefits, for instance, the adjudicator will not be required to consider that point. Amendment No. 345 removes the adjudicator's duty to determine all matters raised in a statement. It is not always necessary, or even desirable, for an adjudicator to determine every issue raised by the appellant. For example, if an adjudicator in a previous appeal determined an issue, it would be wrong for the second adjudicator to determine it again. However, amendment No. 346 does not remove the adjudicator's duty to consider all matters raised. 
 Amendment No. 402 would remove subsection (2)(b), and thus force the adjudicator to consider and determine any matter that had been raised in a statement at any time. If a person now seeking to stay on human rights grounds following their marriage had appealed two years earlier against a student refusal, the adjudicator would be obliged to consider and determine the student issues. It would not matter if those issues had already been determined.

Simon Hughes: Would that apply if the first application had been withdrawn? Obviously, there can be successive applications as people's circumstances change. Someone who came here as a student and then got married might make a second application on the basis of marriage or asylum, having got a student visa. So long as they informed the authorities that they were not pursuing the first application, presumably the situation that the Minister describes would not apply.

Rosie Winterton: If the student had previously tried to extend their period of time on their application as a student, but that was refused, the second adjudicator would not revisit that decision, because an adjudicator would already have considered it. The second adjudicator would be considering the new issue.
 With regard to amendment No. 432, clause 63 empowers the adjudicator to consider what are now called ''additional grounds''. Those are further appealable matters raised in response to a requirement 
 under section 74 of the Immigration and Asylum Act 1999 to disclose reasons for staying here that have not been raised before. That remains a key feature of the one-stop system, the response to the requirement now being made under clause 92. An essential feature of the one-stop process is that all matters relevant to an application for leave are raised, so that they can be fully and appropriately considered. 
 Without new clause 19, an adjudicator could leave some of the additional grounds undetermined. That would necessitate further hearings in order to resolve outstanding matters, and that would cause additional delay. The new clause defines the circumstances in which the appeal must be allowed—that is, when the decision against which the appeal is being brought is not in accordance with the law or the immigration rules, or involves the incorrect exercise of discretion. 
 I hope that I have given some of the background to the Government amendments, and have addressed some of the issues raised under the Opposition amendments.

Humfrey Malins: I rise briefly to speak to amendment No. 402. Unusually, the Minister dealt with it in her comments. In general, we must be careful, when considering such a Bill, to focus as much on justice as on speed for speed's sake. Subsection (2) requires the adjudicator to consider and determine all the grounds of appeal and any additional grounds, and prevents him from considering anything else.
 My amendment would delete subsection 2(b), because to prevent the adjudicator from considering anything else strike me as a fetter on his judicial discretion. Perhaps the Minister will persuade me, but I do not think that the insertion of paragraph (b) serves any useful purpose. I can think of no real parallel in the criminal justice system whereby a judge, on hearing an appeal from a magistrate, is so constrained. The point underlying the amendment is that surely it should be left to an adjudicator to assess what relevance or weight to attach to a statement. That principle is reflected in subsection (3). 
 I am a little uneasy about the fettering of the adjudicator's judicial discretion. Although the Minister answered my questions before I asked them, I was not utterly reassured on that point.

Simon Hughes: The Minister also anticipated the points that I wanted to raise on amendment No. 432, which is in my name and that of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan). I shall deal with amendments Nos. 402 and 432 together, because although they make different points, they take the same direction.
 The general principles in the clause, which is about matters that are to be considered on appeal, are welcome. The clause deals with appeals under section 60, which are appeals against immigration decisions. Such issues have a slightly strange distribution under the Bill, but the clause builds in the opportunity for a statement under section 92, to which the Minister referred. Perfectly reasonably, clause 63(1) says that 
 adjudicators should consider the matters in the statements. The Government do good things in parts of the Bill, but we argue that those things should be done elsewhere in the legislation. 
 Subsection (2) says that 
 ''Subsection (1) applies to a statement under section 92 . . . whether the statement was made before or after the appeal was commenced''. 
The Minister will remember our discussion about commencement. It seems that, under subsection (2), it does not matter if the statement arrived after the lodging of the appeal but before the hearing. The hon. Member for Woking (Mr. Malins) and I would both prefer ''commenced'' to be replaced by a clearer word, but the principle for which we were arguing before we suspended this morning's sitting seems to have been accepted in the clause. I hope that when the Minister considers the debates of this morning, she will decide that it would be consistent to bring the matters that we discussed up to speed with subsection (2). 
 Amendment No. 402, which we have signed, would remove paragraph (b) and thereby ensure that the adjudicator is not fettered in the things he can consider. Amendment No. 432, which my hon. Friend the Member for Sheffield, Hallam and I have tabled, adds what the Minister might call a clarificatory subsection (2A) to ensure that the claims of those who appeal to an adjudicator can be considered not just because they are making an asylum application, but because, as is increasingly common, they are making a human rights application. It accepts the Minister's premise that we should bring all things together. We should allow the adjudicator to consider all the different types of appeal, whether it is against an asylum refusal or on human rights grounds. 
 Like the hon. Gentleman, I will not press our amendment to a Division. I will reflect on what the Minister has said so far and what she may say in response to the two points that we have made. I hope that she will reflect on what we have said, but I think that we agree that the adjudicator should have the power to consider the required statements as provided for in the Bill and any other statements that come to his attention before the hearing, irrespective of when they come. 
 Section 60(1) is described in clause 63(3) as a right of appeal against an immigration decision. It is referred to again in subsection (4), which deals with appeals against refusal of entry clearance or refusal of a certificate of entitlement. There may be a plan to have slightly different rules for slightly different types of application. I concede that I have not entirely thought through the logic of those different approaches. However, even if the Minister does not accept our proposals at first blush, I hope that she will examine them and give us a considered answer. Perhaps she will be kind enough to write to us before Report and, depending on the Government Whips, provide enough time to enable us to table an amendment should we so wish.

Neil Gerrard: The Minister explained that the reason for the different approach to refusals of entry clearance was that there was no question of a penalty or a removal. I understand the logic of that. I hope that we can improve the current situation whereby people are refused entry clearance. I am thinking about people who have made marriage applications and been refused entry clearance and then there is a change of circumstances. There are very long queues at some of the posts that I have to deal with, and it seems unfair that people end up right at the back of the queue having to make a completely fresh application.
 We should examine some of those entry clearance mechanisms and see how we can make the system easier. If there is not an appeal to deal with the updating, we should consider whether a reasonable review of people's circumstances can be carried out. I know that that will happen sometimes when MPs write, but I also recall cases in which an adjudicator has considered evidence that has been submitted. He has told the Home Office that he must refuse the application on the grounds that are covered in the clause. He has considered the decision that was made by the entry clearance officer on the evidence available to him, but has recommended that the Home Office exercise discretion. I hope that we will not cut off that route for decisions to be reviewed. If the clause prevents an adjudicator from making such recommendations, we should consider alternative mechanisms that would enable people whose circumstances have changed to get reviews quickly rather than having to return to the back of a queue for months before their case can be re-examined.

Simon Hughes: Has the hon. Gentleman also had experience of people putting in a new application when they have been turned down because that flexibility does not exist? The system does not lose work. It is better to finish one job more quickly than to force people to return to ''Go'' on the monopoly board so that they have to go through the whole process again.

Neil Gerrard: That is perfectly sensible. We are generating work by making people go through the process again when the refusal has been based on a point that could be satisfied by updating information about a change of circumstances.

Rosie Winterton: The hon. Member for Woking argued that we should not fetter adjudicators. We need to be clear that we do not want an adjudicator to revisit a previous appeal that has already been determined. That would be nonsense, because an appellant may not have wanted to pursue the previous application. It would not be sensible or helpful for it to be revisited on every occasion.
 We want people to have access to section 92 forms as early as possible in the process. Ideally, they should be given to people at induction centres and before the first immigration and nationality directorate hearing or interview. In the case of a refusal, people should be given an opportunity to explain in a statement why they wish their case to be considered. Importantly, the clause also ensures that the circumstances that apply 
 are those that apply at the time of the hearing, so that there is proper consideration of the circumstances at that time. Removing clause 63(2)(b) would not be helpful, not least because the appellant may not want those grounds to be considered any more. 
 We are sympathetic to the points made by my hon. Friend the Member for Walthamstow (Mr. Gerrard). It is important that we continue to work with our colleagues in the Foreign Office to make sure that the processes are clear and that we do whatever we can to resolve the important issues that my hon. Friend raised. The issues can be reconsidered and fresh evidence presented. That should be done in the country of origin, because doing it any other way could lead to considerable delays and adjournments, which would not be in anyone's interest. Indeed, it would put the adjudicator and the Home Office presenting officer in a difficult position if it was open to the same systems. 
 Points were made about the one-stop process. If we want to make the one-stop process to work properly, it is important that all matters that are relevant to an application be raised so that they can be properly considered. If those matters are not raised until the hearing before the adjudicator, it will inevitably lead to adjournments and delays. It will not be possible for an adjudicator to decide the case on the basis of the circumstances applying at the time of the hearing on asylum or human rights matters. However, if those matters were raised for the first time, it is right that the existing appeal should be determined and any new matters referred to the Secretary of State for consideration. If after consideration the Secretary of State rejects the claim, it is possible for him to treat it as further representations, generate a further right of appeal by making a fresh immigration decision or certify the claim under clause 74, thereby preventing any further right of appeal. 
 It is important that we do not allow the system to be abused, particularly by allowing elements of a claim to be kept up someone's sleeve until the last minute, thereby preventing proper consideration. The procedures in the Bill will ensure that there is fairness when matters arise at a later stage, but we must ensure that that is balanced with the ability to prevent the system from being abused by bringing up such matters at the last minute. The adjudicator should be able to consider only issues that can form the basis of an appeal. A question was asked about the immigration decisions, and a list of them can be found in clause 60(2). 
 I hope that that explains the Government's position on the points made by Opposition Members, and that in the light of that the hon. Gentlemen will feel able to withdraw their amendments.

Eric Illsley: It is a Government amendment, so the hon. Gentlemen have nothing to withdraw.

Rosie Winterton: Yes, sorry.
 Amendment agreed to. 
 Amendments made: No. 345, in page 34, line 38, leave out 'and determine'. 
 No. 346, in page 34, line 38, at end insert
'which— 
 (a) constitutes a ground of appeal of a kind listed in section 62(1) against the decision appealed against, or 
 (b) could be the subject of an appeal by the appellant under section 60(1).'.
 No. 347, in page 35, line 4, at end insert 'under section 10'.—[Ms Rosie Winterton.]

Humfrey Malins: I beg to move amendment No. 403, in page 35, line 6, leave out paragraph (b).

Eric Illsley: With this, it will be convenient to take the following: Government amendment No. 348.
 Amendment No. 415, in clause 80, page 40, line 23, leave out subsection (3). 
 Government amendment No. 364.

Humfrey Malins: When the Minister said that she hoped that the amendment would be withdrawn, I was hoping that you would ask whether the Committee agreed, Mr. Illsley. If you had, we would have shouted ''Aye'' loudly and the Government amendments would have fallen.
 I turn now to a important and difficult matter. Amendment No. 403 would delete subsection (4)(b). We must realise that we are discussing immigration, not asylum, appeals. They are two different animals. This morning, we spent a lot of time properly challenging the Government about immigration appeals, and especially delays. A heated but good debate took place. All of us, including the Minister, agreed that there were problems of delay and administration in immigration appeals. We must be careful. The Minister constantly refers to abuse in asylum cases. There is some merit in referring occasionally to that, but the arguments do not apply with the same force in immigration appeals. They are separate matters. 
 For example, subsection (4) covers the refusal of entry clearance. Unless I am greatly mistaken, that involves a person perhaps in Islamabad applying at the high commission for entry clearance to visit. If members of the Committee know that high commission, they will realise that it is not an easy task for a person to undertake. There are many people. Despite the fact that it is doing its absolute best, the waiting conditions are not perfect. The people to whom I am referring are not making an application for asylum; they are not abusing the system; they are making a straightforward application. It results in an on-the-spot interview, and perhaps shortly afterwards, a refusal. 
 If there is an appeal, subsection (4)(b) states that 
''the adjudicator may consider only evidence which was available to the person who took the decision to refuse.'' 
I will be corrected if I am wrong, but in the simplest of language, that means that the person who has made the decision at Islamabad on the basis of the information that he or she has, finds that, when the adjudicator here—not there—hears the appeal, he or she is stuck on the same evidence and nothing more. At present, statutory provisions do not limit the evidence 
 in entry clearance cases when there are appeals. There is no limit to what has been submitted to the entry clearance officer. That is not surprising, because in many cases, people go to the entry clearance officer to apply for entry clearance without their tackle being shipshape. 
 At present, appellants can produce evidence that relates to relevant facts at the date of decision. Extra evidence can come to light later, particularly if it was difficult to obtain—for example, when witnesses are not in the United Kingdom. The right to take such action should not be restricted. 
 The same applies in connection with amendment No. 415 to clause 80(3)(b), which deals with the Immigration Appeal Tribunal, which can 
''consider only evidence which was available to the person who took the decision to refuse.'' 
What do the Government mean by that? We know from our surgeries that if people make an application for entry clearance and they are refused, the sponsor in this country contacts us. I hope that I have not completely missed the point. It is entirely possible that things may be very different by the time such people come to our surgeries. For example, some of the hurdles that the applicant failed to jump in the interview in, say, Islamabad might have been overcome. 
 Let us consider a specific example: an application for entry clearance for a visa to attend a wedding is refused, and there is an appeal. After the refusal, all sorts of evidence might be obtained about the wedding—not least a personal letter from the Member of Parliament stating that he knows that there is a wedding because he is going to it. A host of other material might also become available, such as the wedding invitation, and other financial material that was previously unavailable—or perhaps it was available. 
 It is common ground that all such matters are at large when there is an appeal. That is certainly the case with regard to the criminal justice system: in criminal appeals, such matters are, effectively, at the discretion of the judiciary. If decisions—and especially tough ones—are to be made, I am keen that they should be made by someone in a judicial position, rather than, effectively, by the Secretary of State. We must recognise that immigration appeals are different from asylum appeals. In the past, delays were often caused by Government bodies, and in a huge number of cases there is not the abuse that the Minister would have us believe exists in asylum cases. 
 The clause states: 
''in relation to an appeal under section 60(1) against refusal of entry clearance . . . the adjudicator may consider only evidence which was available to the person who took the decision to refuse.'' 
That means that he cannot consider evidence that was unavailable in Islamabad but has subsequently become available. That is a departure from the current law, and it is unfair and unnecessary.

Simon Hughes: Government amendment No. 348 proposes that, at the end of subsection (4), there should be added,
'''or which concerns a matter which was relevant to the taking of the decision'.'' 
I thank the Government for that, as it is a great help. Their reflection has led to an improvement. 
 I was going to make an equally complimentary remark about Government amendment No. 364, but I cannot find it in my notes—perhaps the Minister will help me on that later on. That leaves us with amendments Nos. 403 and 415, which go in the same direction, so I hope that she will accept their general point. 
 As the hon. Member for Woking suggested, entry clearance officers—like Customs and immigration officers—are civil servants who act at ports of entry, where they make initial front-line decisions. They make them as carefully as possible. I have watched them and seen how they approach their work. However, they make one decision after another; that is all they do every day. There comes a time when that cannot be what they dream about doing; instead, they probably wish that they were somewhere else. They may dream that they are on the beach around the corner, but they certainly do not dream that they wish that they had yet another queue to deal with. Their work is hard—it is relentless, and they have to concentrate. In many of these places, there are relentless queues of people applying to come on family visits, for courses and for work. An important first point of principle is that an adjudicator is not a civil servant but is outwith the system. It is important that someone can stand back and examine how the system has dealt with a case. 
 As the hon. Member for Walthamstow (Mr. Gerrard) said, it must be in everyone's interests to keep one application going that deals with everything, rather than to keep recycling an application. If new evidence comes to light between the decision and the adjudicator's hearing, it must be brought into play, as it will change the nature of the beast. I will give an example. I believe that I represent more council house occupants than any other English Member of Parliament. Some two thirds of my electorate live in council property—it used to be 80 per cent. Immigration officers in the front line are often not satisfied that someone has accommodation or funds sufficient to be able to look after themselves. 
 The truth is that although a family in a two-bedroom flat on the Rockingham estate at the Elephant and Castle may not be living in the lap of luxury, if they need to, they will move someone into the living room and put the two kids into the bedroom. The accommodation may not be grandiose, but it is sufficient, and there is no extra cost. In any event, the local authority quite properly would not consider an application for larger accommodation until the people are here. It will not offer someone a bigger flat, even if it has one, on the basis of a prospective arrival. The Ministers will know that from their own constituencies. 
 Often, only that sort of further assessment can resolve those issues. The accommodation may be small and appear to be insufficient, but on review we can see that it is reasonable. The same is true of funding. It may not appear at first blush from the documents 
 presented in Islamabad or elsewhere that the funds are available to look after someone. For example, it can take a while to obtain bank statements. People queue to put their case, and may be turned down because there is no opportunity to go away and get other documents. Having waited for a day, or even two days, someone is not going to give up their place in the queue, because someone six places ahead of them says that it may be helpful to produce another statement. People often persist in their application in the hope that their documents are sufficient. They may then be told that they are not, but the evidence may exist and it is just a matter of getting hold of it, whether it is evidence of an Abbey National account or other money transactions. I hope that the argument put by the hon. Member for Woking and me is persuasive. In cases of refusal of entry clearance and refusal of certificate of entitlement, we must be allowed to put the same case with all the evidence. 
 Although the Government amendment is helpful and a welcome improvement, it does not meet the objective. Even if the adjudicator can consider matters relevant to taking the decision, that does not go as far as we would want. 
 I cannot understand why the processes for appeal to the adjudicator and beyond are different if the decision is taken by an immigration officer at Gatwick or someone behind a desk at the high commission in Nigeria, Sierra Leone, Ghana, Australia or anywhere else. The amendments are designed to secure a common system, irrespective of whether the decision is taken here or overseas.

Rosie Winterton: May I first apologise for the earlier confusion, which was wholly my fault? Thank you for your assistance, Mr. Illsley. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) acknowledged that Government amendment No. 348 goes some way towards addressing his concerns. I shall return to it in a moment.
 Several views have been expressed about entry clearance decisions and appeals. The Government restored the right of appeal for family visits and we deserve some credit for that. Furthermore, some Opposition Members removed those appeal rights. The Opposition amendments would increase the number of appeals, but we are trying to streamline the appeal system to make it simpler for everyone and serve the best interests of people who are genuinely seeking and are deserving of refugee status. We need a system that will allow us to deliver decisions as quickly as possible.

Simon Hughes: I think that the Minister means immigration, not refugee, status.

Rosie Winterton: Yes, I do.
 To return to Government amendment No. 348, appeals made in the United Kingdom are subject to the one-stop process where, in response to a requirement made under clause 92, the applicant is required to disclose any reasons for staying in the United Kingdom that had not been raised before. That makes 
 it possible for the Home Office to consider anything new that arises, so that the adjudicator can review our decision rather than take a new one. 
 We cannot expect an applicant for entry clearance to know, perhaps months in advance, all the reasons for remaining in the UK once he arrives. It would be unreasonable in those circumstances to issue a notice under clause 92, but if we do not issue such a notice, we cannot ask the adjudicator to consider any new grounds that may arise between the decision and the appeal hearing. That would mean that the adjudicator could be expected to take a completely new decision, which is an administrative rather than a judicial function. 
 We accept, however, that clause 63 is too restrictive. Under section 77 of the 1999 Act, the adjudicator currently has jurisdiction to consider matters that relate to relevant facts as they stand on the date of decision. If a person claims at interview that they are in a relationship with someone and marries that person a week after the date of decision, the adjudicator will be able to take the marriage into account as evidence of the relationship on the day of the decision. We believe that that situation should continue, which is why we tabled amendment No. 348.

Humfrey Malins: In that case, why did the Government draft something entirely different?

Rosie Winterton: As I said, having examined the clause, we believed that it was too restrictive and took this opportunity to make an adjustment. I would hope that the Opposition would welcome that, not churlishly but with open arms.
 Amendment No. 403 would not help, because it would take us backwards from the current position. It would leave the jurisdiction of the adjudicator unclear in entry clearance cases and take us back to the pre-1999 Act position, when case law governed the matter. We believe that it is better to have a clear statutory provision so that there is no doubt about the test. 
 Government amendment No. 364 concerns clause 80(3) and appeals against refusal of entry clearance or certificate of entitlement applications made abroad. Subsection (3)(b) concerns overseas cases, which are not one-stop cases and in which subsequent applications can be made without penalty. There has been much discussion about how such cases are treated, but in such situations people already have a right of recourse through a review with the entry clearance officer. It is much better to approach the decision maker with new evidence, because any new evidence put before an adjudicator and Home Office presenting officer would create a difficult position. As I said earlier, either the hearing would have to be adjourned, or evidence would be considered without full scrutiny. However, if the evidence is put to the entry clearance officer, there is not that kind of pressure. 
 We must examine closely how we can improve the system and give clearer advice to people who make applications abroad. That is important, so that people 
 can put forward as much evidence as possible at the initial stage. Nevertheless, it is far better in those cases for evidence to be presented to the entry clearance officer because there is no reason why fresh applications cannot be made or new evidence cannot be presented at that time. In addition to the fact that there is no threat of removal, that is why those cases should be treated differently.

Simon Hughes: I understand the Minister's arguments, but will she reflect on the fact that there will be difficulties and cost implications if people have to travel to make the application and have an interview, and then go back with more evidence? I should know the answer to this question, but I do not: am I right in believing that some applications involve a fee? A person whose application is refused might be told that they can make another, but that would be a more expensive option than an appeal, which does not involve a fee. Some people have very little income. There is also the usual suspicion that if the case is to go back to the person who made the first decision, it might not go much further. People will often opt for appeal, especially if no cost and a different person are involved.

Rosie Winterton: I understand the hon. Gentleman's point, but we must balance that against our objective of ensuring that current appeals processes can deal with current circumstances. We are talking about the effect that removal has on individuals. We must balance the penalties involved in such circumstances. It is important to ensure that at the earliest point people are made aware of the information that they need to provide to, for example, entry clearance officers.
 In reaching a decision, the tribunal may consider evidence about any matter that it believes to be relevant to the adjudicator's decision, including evidence that relates to a matter that arises after that decision. However, that will not apply in cases in which the appeal is against refusal of entry clearance or of a certificate of entitlement. If clause 80(3) were removed, as proposed in amendment No. 415, people appealing against refusal of entry clearance or of a certificate of entitlement would be able to introduce new evidence on appeal. That would cause unnecessary expense, an increase in adjournments, and additional complications. I hope that that explains why I hope that the Committee will accept the Government amendments and reject the Opposition's.

Humfrey Malins: The Minister replied in a most courteous and kindly fashion. I apologise for having forgotten to say earlier that Government amendment No. 348 seems to reflect some movement on their part. However, if I am expected to be confident in the Government machinery, the news that they now believe that what they thought was terrific on 27 April, and must have thought was terrific in the weeks leading up to that point, is not terrific makes me shudder, because it means that we cannot rely on them to have a consistent view.
 Amendment No. 348 is not well drafted. The English is appalling—it would not score much out of 10 in an exam. If it were accepted, clause 63(4)(b) would read in full: 
''the adjudicator may consider only evidence which was available to the person who took the decision to refuse or which concerns a matter which was relevant to the taking of the decision.'' 
That is not good English. Many people will scratch their head and ask what it means. I hope that the hon. Member for Southwark, North and Bermondsey agrees that the adjudicator should consider whatever they want to consider and whatever they think is relevant. If the Minister is arguing that the Bill states that, I am intrigued to learn how. 
 There is an interesting parallel in criminal law—I am not digressing. If the defendant had a defence that was not used, it is up to the judge when summing up to direct the jury that it is open to it to find according to that defence. That is certainly a case of bending over backwards to help. What is the specific difference between what is proposed and giving the adjudicator in the appeal absolute discretion to hear whatever they want and assess it however they want? 
 The hon. Member for Southwark, North and Bermondsey made an interesting point about an issue that recently arose in my constituency. I am now scratching my head about whether I did the right thing. Someone's entry clearance application was turned down; I thought that that was ridiculous, as it was a top case, so I decided to back the person 100 per cent. They asked whether they should appeal, and I said, ''No, it would take years to get an appeal. I'll give you a letter signed by two notable persons in the constituency, plus me. Fax it to Colin Mulcahy, the boss at the Islamabad embassy. Once he sees my imprint on it and that of my Labour opponent at the last general election, Sabir Hussain—a great man, who represents the community in Woking very well—you should make a fresh application. I bet my bottom dollar it succeeds.'' At the time, I was thinking of speed for the applicant, but it might cost them money, so in a way I slightly regret what I have done—but I digress. 
 The Minister should realise that the abuse talked about in the press and being considered by the Committee and Parliament is the so-called abuse in some asylum applications. The world of immigration appeals is completely different. The clause is not satisfactory. What is the specific difference between its provisions and giving the adjudicator a totally free hand to take into account whatever they want?

Rosie Winterton: I am sorry that the hon. Gentleman does not welcome our decision to make an amendment. That is what parliamentary scrutiny is about. We have on occasion accepted the points made in debate, and I hoped that he would be more welcoming of the points reflected in amendment No. 348. We have tried to ensure that an adjudicator does not rehear cases that have already been heard and determined. I gave the example of someone who applied for variation of leave as a student, their case
 was determined, but they then made another application. Hearing previously made claims all over again would not be a sensible way to proceed.

Humfrey Malins: I do not want to oblige the adjudicator to hear anything. That is the point. I am saying that the adjudicator, a judicial person, should have discretion. They would not have to hear matters that had been previously determined.

Rosie Winterton: But if we are to create a system in which there is clarity, not confusion, it is important to state what it is appropriate for adjudicators to consider at the various stages, otherwise the adjudicator's position could be unclear. The difference that we are introducing is that the appellant would be able to raise matters that the entry clearance officer had not considered. That is important and I hope that, on reflection, the hon. Gentleman will see that we are trying to create a system that is easily understood and that makes clear what adjudicators are expected to examine when hearing appeals. Otherwise, the position becomes confused, which helps neither appellants nor those who represent them. I hope that the hon. Gentleman accepts that the changes made by Government amendment No. 348 meet several of his concerns.

Simon Hughes: The Minister will excuse me for not being grateful for the small mercy that she offered. She heard me say that the point has not been addressed, which is a concern that the hon. Member for Woking and I share. May I make two points before I leave him to decide what to do with the amendment?
 It is important that the British—in this case, English—judicial system has a reputation for doing its job well. Doing a job well does not mean making nit-picking decisions that preclude people from looking at reality; it means allowing those who are appointed to review the case in the round. One of the reasons why asylum seekers want to come to this country is that we have a good reputation for fairness, honouring human rights and upholding the law, whereas the countries they come from do not have that good reputation. A system that works—one in which a civil servant makes a decision that is reviewed by an independent person—is good for Britain, to use a phrase that Prime Ministers have used over the years. Such a system would mean that we were seen to be doing the job properly. 
 If for some reason—to use the colourful phrase of the hon. Member for Woking—the tackle is not in order at the time a case is presented at the desk at a British mission overseas, it is sensible that if the case enters the appeal system, there is a chance, based on any evidence, for it to be reviewed in the round. If a person comes to this country as a student or a spouse or to work, upholding a decision taken on the basis of three quarters of the relevant facts is not important; what is important is to make the right decision so that a person who tries to come here as a nurse can do that. 
 I understand the arguments about stopping rogues stringing out appeals and about ensuring that there is one hearing, not six. I do not understand the point about allowing the adjudicator to say, ''Right, this is 
 all the case. I understand why the entry clearance officer made his decision, but I now know that the flat is big enough, or the money is sufficient, or the course has been agreed to.'' I hope that the Ministers will think about that and that they will table an amendment that is in line with amendment No. 403, whether or not that amendment is pressed to a vote. 
 I neglected to say earlier that Government amendment No. 364 and amendment No. 415 relate to the second stage of the process—the Immigration Appeal Tribunal. That is the next step up at which it is even more logical and important to consider everything; to do otherwise is to defend a limited view that might be all that the entry clearance officer had to go on. Both stages of the appeal—the adjudicator and the tribunal—are important, so I hope that Ministers will be persuaded to make changes. 
 The Government chide Conservative spokesmen for the wicked asylum and immigration policies that were introduced when the Tories were in power, but, as we have discovered, the 1999 Act is no model of perfection. Ministers can fairly argue that the 1999 Act brought changes, but no one believes that it should be regarded as the bible of wonderful immigration and asylum policies. Much has been changed, thank goodness, but valid reasons remain to change more.

Humfrey Malins: A principle is at stake here and we parliamentarians should keep an eye on it. The principle is that judicial discretion should not be fettered. An appeal from an entry clearance officer to an adjudicator is not based on a point of law; it is an appeal against a decision. It is wrong to say to the adjudicator anything other than, ''This is the appeal; you hear it''. No one should say, ''You have to hear this. You have to hear that. You have to listen to an argument on spurious subjects for 28 days.'' That is the point. What we should be saying is, ''Decide what you want to hear. Reject some parts of the appeal. Feel free to refuse to hear arguments about a particular subject. Feel free to demand hearing a particular argument.'' That gives the adjudicator discretion.
 That problem, which involves the state, also applies to other parts of the Bill. The state is effectively saying to the adjudicator, ''Yes, hear the appeal, but do it our way.'' I exaggerate to make the point, but the state is placing constraints on the judiciary. The hon. Member for Southwark, North and Bermondsey is right that this country's judiciary has a good reputation for being wholly independent of the Executive. It must stay that way. Any measure that ties in the judiciary with the Executive is not only bad per se, but sends a bad signal to other places about a link between them. We must keep an eye on such developments generally. 
 I shall not ask hon. Members to join me in a Division on the amendment. The Government have made a concession, for which I am grateful—clearly, they are listening. We have had an important debate. The adjudicator should be a free agent, able to decide 
 to hear whatever he or she wants and to attach to it whatever weight he or she wants to attach. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment made: No. 348, in page 35, line 7, at end insert 
'or which concerns a matter which was relevant to the taking of the decision'.—[Ms Rosie Winterton.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: I want to flag up the fact that the hon. Member for Woking and I are unhappy about aspects of the clause. We have made the point, but will not reject the clause as a whole. We hope that the Government will try to improve it on Report.
 As soon as practicable, will the Parliamentary Secretary provide the Committee with a list of current initial charges for immigration services, so we can assess costs effectively? We will come later to the improved position on appeals, for which we are grateful.

Rosie Winterton: I am happy to do that.
 Clause 63, as amended, ordered to stand part of the Bill.

Clause 64 - Consolidation of appeals

Question proposed, That the clause stand part of the Bill.

Eric Illsley: With this it will be convenient to take Government amendment No. 368.

Angela Eagle: If an appellant raises additional reasons for staying in the UK in the course of an appeal, they can be argued as part of a one-stop appeal and incorporated into that, rather than treated as a separate decision with a separate right of appeal. If, unusually, a further decision attracts a separate right of appeal, it should be possible for them to be linked pursuant to rules made under clause 84.
 The clause is unnecessary, and consequently clause 84 should be amended, as it refers to the clause. We are therefore in the odd position of asking members of the Committee to vote for the amendment, and then to oppose that the clause stand part of the Bill.

Eric Illsley: For the benefit of members of the Committee, let me point out that the decision on amendment No. 368 will be taken when we discuss the clause to which it is relevant.

Simon Hughes: I was not confused, but I am now.
 I make this comment and the next in a non-confrontational manner. Clause 84 relates to the rules that the Lord Chancellor may make. Amendment No. 368 amends subsection (2)(m) on page 42, which I marked in anticipation. I believe that the Minister is 
 saying that all the things that were to be covered in the clause will be shipped into the rule-making powers in clause 84. I am happy with that if that is correct. 
 The Bill as a whole would benefit from consideration at the end of the Committee stage to ensure that we separate immigration and asylum where that is possible. I always try to make the point to the great public outside, as well as to the Committee, that the two are different. We are obliged to grant asylum, but not to allow someone in as an immigrant. One is governed by international law, the other by domestic law. The public need to understand that, as they often get confused. 
 Part 5 is entitled ''Immigration and asylum appeals''. Clause 61 is headed ''Appeal: claim for asylum''. Clause 62 is headed ''Grounds for appeal'', which I believe relates only to immigration and should therefore be headed ''Grounds for appeal: immigration''. I believe that clause 63, ''Matters to be considered'', relates only to immigration, not to asylum. The title of clause 64, ''Consolidation of appeals'', also relates only to immigration appeals. Under the clauses, therefore, one could not consolidate an asylum application in an immigration case, although both bounce around in theory at the same time, as the Minister knows. Will the Ministers consider reordering this part of the Bill with advice from colleagues, so that we can separate the asylum and immigration processes? 
 We should separate immigration appeals, not consolidate them. I do not think that it is technically possible to consolidate asylum appeals, because only one of them can be alive at any given time. If we are talking about consolidation of Home Office matters about status, at the end of this clause it would be logical to pull those together. I am merely making a request. We are trying to get clear clauses and clear headings to clauses, so that everyone can find what they are looking for. 
 Part 1 is about nationality and citizenship. It is entitled ''Nationality'', but when we went through it, we agreed that it is about citizenship and nationality—that some bits of the clause deal with the one subject, and other bits with the other. We argued for different names, but the Government took a contrary position. However, we should try to ensure that there is consistent language throughout the Bill, so that people following it can find their way through it more easily. I am sure that that could be done if people were to apply their minds to the task.

Angela Eagle: I confirm the hon. Gentleman's view that clause 84 effectively subsumes the need to have clause 64. I hope that we can move on to discuss clause 84 before today's deliberations come to an end, so that he can talk about that.
 The hon. Gentleman asks for everything to be separated, but at the same time he wants us to consolidate. We are trying to consolidate. It is not always possible both to separate and to consolidate; he can use both words in the same sentence, but it is not always possible to achieve that. We are doing what we can about how the Bill is ordered, but, as he said—to borrow the memorable phrase of the hon. Member for 
 Woking, who made the same point—the tackle sometimes gets mixed up. That is certainly the case in some of these areas, where people have immigration cases, appeals and asylum cases running at the same time. In such circumstances, those cases will be considered together. Therefore, there is some consolidation, but there is also some separation. We will make that as neat as possible, but it will never be perfect. 
 I will move that amendment No. 368 be incorporated into clause 84, but I ask the Committee to disagree to clause 64 standing part of the Bill. 
 Clause 64 disagreed to.

Clause 65 - Successful appeal: discretion

Angela Eagle: I beg to move amendment. No. 350, in page 35, line 15, after '60', insert 'or 61'.
 The amendment widens the scope of the clause and gives the adjudicator the power to give directions by including provision for the power to be used in appeals against a rejection by the Secretary of State of a claim for asylum in circumstances in which the appellant has been granted leave to enter or remain in the UK for a period exceeding one year. That ensures consistency across appeal types, so it is a kind of consolidation, but it is also a simplification. As the clause stands, adjudicators have the power to give a direction to give effect in some decisions, but not in others. This merely makes that consistent across the piece. 
 Amendment agreed to. 
 Clause 65, as amended, ordered to stand part of the Bill.

Clause 66 - Ineligibility

Humfrey Malins: I beg to move amendment No. 404, in page 35, line 37, leave out paragraph (c).

Eric Illsley: With this it will be convenient to take amendment No. 405, in page 35, line 39, leave out paragraph (d).

Humfrey Malins: The clause sets out the categories of persons who are to be denied a right to appeal. It is criticised as extremely vague. For example, the Immigration Advisory Service is worried about the meaning of
''seeking to be in the United Kingdom''. 
Will the Minister explain whether that includes people who are appealing from within the UK as well as those who are outside the country? Why is the language different from that used in subsection (2)(d), which refers to a person 
''seeking to enter or remain''? 
It could just be sloppy drafting or there may be a reason for the different wording. 
 Amendment No. 405 would remove the prohibition on appeal against a decision that a person is
''seeking to enter or remain in the United Kingdom for a purpose other than . . . in accordance with immigration rules.''
 That is a technical point under the law, and I am advised that the provision would remove an appeal right from people who make applications under important concessions outside the immigration rules. Such people include women who have been victims of violence in marriage and want to take advantage of the domestic violence concession; the families of children who have lived for seven or more of their formative years in the United Kingdom; and those who would benefit from the 14-year and the 10-year concessions because of their long residence here. 
 As subsection (2)(d) precludes such refused applicants from appealing a decision to an adjudicator, they have no option but to appeal via judicial review, which is a slow and costly remedy. It seems more appropriate to allow those who come within the ambit of such concessions a statutory right of appeal under the Bill. The Immigration Advisory Service is another body that regards the category of persons to be denied a right to appeal as being too broad. Can the Minister give an assurance that the Bill as drafted does not exclude asylum seekers who are claming that to remove them would be contrary to the United Kingdom's obligations under the refugee convention in part 2 of the current immigration rules that deal with asylum seekers? Among the people who may lose out under the clause will be those relying on existing policies to enable them to bring in family members to join them, when they have exceptional leave to remain for what may be compassionate reasons. The probing amendments were drafted by persons more skilled than me to tease out answers from the Government to some important questions.

Simon Hughes: The hon. Member for Woking and I have the same worries, and those with whom we have discussed the matter have pointed out certain defects that would be dealt with by the removal of subsection (2)(c) and (d).
 As the hon. Gentleman said, we have now reached the clauses that deal with exceptions and limitations. There are 12 such clauses, compared with seven clauses that deal with substantive proposals. It is sad that it is not the other way round. Furthermore, we are all suffering from the disadvantage of the absence of a Special Standing Committee. The previous Immigration and Asylum Bill was not perfect, even after deliberations by a Special Standing Committee. However, as my hon. Friend the Member for Sheffield, Hallam said—he is at present discussing a statutory instrument on Home Office business down the Corridor, but will be back here shortly—it was an extremely valuable exercise. Advice could have been taken and proposals tested through such a proceeding. I make a plea that, whenever possible, unless there is an overriding reason why not, we must have a White Paper, a draft Bill and a Special Standing Committee to deal with technical matters before the final version of the Bill is discussed.

Humfrey Malins: The hon. Gentleman and I strongly agree on that point. Does he further agree that such Bills will be considered properly and carefully only if, as well as Special Standing Committee, a Select Committee can spend time considering the clauses and hearing evidence in the informal way that Select Committees do?

Simon Hughes: I agree. I think that I have already said that some EU countries do just that. Their Governments produce Bills that get a formal First Reading, and are then passed to an inquiry body made up of parliamentarians who take evidence. It is only when all parties involved have certified that the Bills have gone through that process adequately that they come back to the Floor of the House for parliamentary scrutiny. I am sure that we can learn from such systems when it comes to modernising our Parliament.

Rosie Winterton: I shall be brief, as I am sure that hon. Members want to move on to other parts of the Bill. I assure them that the clause and those that follow it are largely equivalent to the sections in the Immigration and Asylum Act 1999 that restrict rights of appeal. The clauses, however, are arranged differently to suit the revised layout of immigration decisions and grounds for appeal.
 The only further restriction is in respect of cases in which the application is for a purpose that is not permitted under the immigration rules. In those cases, the adjudicator would have very limited jurisdiction. The vast majority of applicants can hope for nothing but a recommendation, which is not even binding on the decision maker. 
 Let me give some examples of the effects of the amendment. It would remove subsection (2)(c), which removes the right of appeal for persons applying to remain 
''in the United Kingdom for a period greater than that permitted... by immigration rules''.
 I shall give the example of a working holidaymaker who applied under that scheme to come to the UK for two years, and knew that limit before applying. There is no appeal against not extending that time because the working holidaymaker scheme had finished. 
 Different circumstances might apply: suppose that the person became engaged and wanted to apply under the fiancee application in the UK, although the proper thing to do would be to go back and apply from abroad. If that person then wanted to become a student, he or she could apply under that category but not under the working holidaymaker scheme, because there is no way that the appeal could be heard under that scheme. 
 Amendment No. 405 would remove subsection (2)(d), which removes the right of appeal for persons who apply for leave to 
''enter or remain in the United Kingdom for a purpose''
 that is not covered by the immigration rules. That could apply to a case in which someone wanted to come and supervise a relative who was studying here but was having difficulty completing their studies. 
 Under the immigration rules, the relative would not be able to do that, but they might be granted permission by the immigration and nationality directorate at the Secretary of State's discretion. In those circumstances, we would not want an adjudicator to review that discretion, but the decision could be judicially reviewed. 
 We are talking about cases in which appeals will not be allowed because they, effectively, do not come within the immigration laws. There is nothing sinister about the provision. I accept that the amendments are probing, and I hope that my explanation persuades the hon. Member for Woking to withdraw the amendment.

Neil Gerrard: I understand the logic of saying that it is difficult to have appeals on matters that are discretionary and outside the rules. The answer to some of those problems and to some of the issues raised by the hon. Member for Woking is to start to consolidate within the immigration rules those established concessions that the Home Office has stated would apply. In cases where the concessions were not applied to someone, they would fall within the category of appealable decisions. That is the way to simplify this area, rather than to build complex appeal arrangements around discretionary decisions.

Humfrey Malins: I raised one little language point in my comments on amendment No. 404. I asked whether the phrase
''seeking to be in the United Kingdom'' 
includes people appealing from within the UK as well as those who do so from outside. Furthermore, what is the difference between that and the phrase 
''seeking to enter or remain''? 
The choice of language is odd. Perhaps I have missed a drafting point, but I should be grateful if the Minister let me know what it means.

Rosie Winterton: It is covered by the examples that I used of the working holidaymaker who wanted to be in the United Kingdom for a longer period than permitted by immigration rules, or someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and wanted to extend the permit because her daughter had had a baby and she wanted to help look after it. Such a case would fall outside the current rules. The Government agree with the points made by my hon. Friend the Member for Walthamstow, and we intend to take steps to consolidate the concessions.

Humfrey Malins: In the circumstances, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Rosie Winterton: I beg to move amendment No. 351, in page 36, line 8, at end insert—
 '( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.

Eric Illsley: With this it will be convenient to take Government amendments Nos. 352 to 354 and 360.

Rosie Winterton: The amendments ensure the integrity of the immigration appeals process in terms of our obligations under the Human Rights Act 1998 and the Race Relations Act 1976 by providing a right of appeal on race and human rights grounds where appeal rights are otherwise restricted. The clauses covered by the amendments deny rights of appeal essentially in cases in which the appeal cannot succeed or the matter under appeal cannot be regarded as sufficiently important to the applicant to justify the use of the appeal resources involved.
 Except in the case of applications to be made for a purpose not covered by the immigration rules, these provisions reproduce existing provisions in the Immigration and Asylum Act 1999. Indeed, most such cases have not attracted rights of appeal since the enactment of the Asylum and Immigration Appeals Act 1993. However, it is clearly inappropriate to apply such arguments against providing a right of appeal if human rights or a complaint of racial discrimination are involved. The amendments make the necessary exceptions for such cases. The exceptions are already provided for in the Immigration and Asylum Act 1999 and the Race Relations Act. As now, we shall not invite an appeal on race or human rights grounds unless the application was made on those grounds. It is obviously not for us to solicit new applications in that way. 
 Amendment No. 360 covers clause 76. The case is different, as it relates to people whose presence in the UK the Secretary of State in person considers contrary to the public good. Obviously, we need to ensure that a person who is refused leave to enter and who falls under that clause can make an asylum appeal. If necessary, we shall table a further amendment to do that. I hope that the Committee will agree to the amendments.

Simon Hughes: The amendments seem to be helpful and in the right direction. I shall not oppose them now, although I shall take advice on the Minister comments. The amendments appear to be sensible extensions of the legislation for the categories involved.
 Amendment agreed to. 
 Clause 66, as amended, ordered to stand part of the Bill.

Clause 67 - Compliance with procedure

Question proposed, That the clause stand part of the Bill.

Humfrey Malins: The clause restates provisions in the 1999 Act, so we should not be surprised to find it here. Concerns have been expressed by the UNHCR, among others. The UNHCR recognises the need for an official procedure in the interests of both asylum seekers and the proper functioning of an asylum system. It is worried that the clause might hamper
 asylum seekers' access to protection, and believes that the removal of appeal rights for non-compliance with procedural requirements is an overly restrictive approach that could result in the substantive elements of a claim not even being examined.
 Common experience suggests that asylum systems benefit from some flexibility for time limits and other procedural parameters, as, indeed, does much of life. The UNHCR is anxious that strict parameters for appeals should not be implemented in a way that prejudices asylum seekers and impedes the effective review of an asylum claim at the appeal stage. I make those points on behalf of the UNHCR.

Simon Hughes: It seems important to have what in other legal contexts is called a slip rule—something that allows a failure to carry out a procedure not to bar someone from having the substance of their case examined. The example that I cite is a parallel, rather than a case that relates directly to immigration. I dealt with a housing application to my local housing office in Southwark—I mischievously add that this happened under the old regime rather than the new regime that is about to take over under new political colours next week—

Humfrey Malins: A Tory gain.

Simon Hughes: No, not a Tory gain.
 The homeless applicant did not have his homelessness application considered because he had failed to fill in one box in the form, and no one told him for weeks. That is the nonsense that we are trying to avoid. 
 I have two equally relevant but slightly different questions about the procedures. The clause relates to procedures in this country. I have never understood why if someone makes an application in, say, Harare, to come to this country, their appeal has to be lodged in Harare, even if it is to be dealt with here. Why can it not be lodged here instead of Harare? I think that the deadline for lodging an appeal is normally 28 days. 
 Often, the decision is given and, as the hon. Member for Woking said, there is consultation with the sponsor in this country as to whether the next step should be appeal or a new application. The appeal form is filled out in this country—I have regularly done this myself—and must be returned to the initial place of application to be lodged, only for it then to return to London. That is a nonsensical system. Has any thought been given to allowing the appeal to be lodged in Harare by the applicant or in London by their sponsor or someone else nominated by them? That would save on bureaucracy. It is not just a notional question: I once had terrible trouble getting a form back to Ethiopia to be lodged in time, simply because sending something to Addis Ababa at that time was very difficult. 
 I do not know whether my next point arises only under clause 67 or more widely. We have been discussing decisions made here, as some are, and 
 decisions made at foreign missions by entry clearance officers. Perhaps because I am a simple individual, I have never understood why some decisions are taken by Foreign and Commonwealth Office personnel and some by Home Office personnel—why all immigration and asylum decisions are not taken within one Department. 
 There may be a wonderfully persuasive argument why that is the case, perhaps to do with history. There may be a simple answer that has eluded me and many others. I have no more disparaging or more complimentary views about people in either Department. I have met many of them, and they do an extremely good job, for which I am grateful. In addition, Ministers in both Departments have been courteous when I have raised matters with them. However, it would help all concerned if we had to deal with only one Department. 
 Have the Government ever reviewed whether all immigration and asylum matters could reasonably be dealt with by one Department? The Foreign Office would no doubt say, ''No, that would be empire building by the Home Office'', and the Home Office would say the same about the Foreign Office. Departmental rivalry might well be involved, but I cannot understand why people's applications to come to the UK as asylum seekers or immigrants cannot be dealt with by one group of people. That is relevant because it would result in less complication and fewer procedural problems for applicants. As it is, they do not know whether officials or employees are from the FCO or the Home Office. Why cannot one Department deal with these matters?

Neil Gerrard: I just want to be clear about something that I hope I have got wrong. One aspect of the asylum process about which there has been much concern is the number of people whose claims have been rejected because of failure to return the statement of evidence form. There have been significant numbers of refusals relating to return of the SEF, and it has been argued that the period should be longer. I want to be clear that nothing in the clause will affect anyone in that position.

Rosie Winterton: I hope to be able to provide reassurance. There is no connection with SEFs.
 It is important for the IND to have streamlined procedures so that it is able to deliver faster, improved decision making and to save money. If applications are made in a standard form and in accordance with standard procedures, that is obviously helpful, and I refer again to a previous debate in which Opposition Members said that it was important to get the administration right. This is part of that procedure. We therefore need the power to lay down how those procedures should be followed, and the power to refuse an application that is not properly made. That would be a fundamental ground of refusal, and an appeal in that scenario would therefore be a waste of time and would clog up the process. 
 I assure hon. Members that we have no plans to prescribe any forms or processes for asylum and human rights applications in that scenario. We do not 
 intend people who make such claims to have no right of appeal. However, we have noted the points made by hon. Members. If the effect of a failure to comply is that no application is made, the clause is an unnecessary elaboration. We are considering the matter further, and may introduce changes on Report. I hope that that reassures the Committee.

Simon Hughes: May I prompt the Parliamentary Secretary on the two less technical issues that I raised about the ability to lodge appeals here rather than in the country of the initial application, and about FCO and Home Office officials and whether we can move to a final, single Department structure?

Rosie Winterton: Departmental changes are for the Prime Minister to decide. I point the hon. Gentleman to the success of UK visas, on which the FCO and the Home Office have worked closely and successfully together, but I take his points on board.
 As for the Harare case the hon. Gentleman set out, the entry clearance officer needs to know the grounds of appeal, therefore it would not be appropriate for the case to be lodged in this country. That is a rather procedural issue. Procedural restructuring goes wider than the appeals process.

Simon Hughes: On the appeals process, I understand that the ECO would need to know the reason for the appeal. However, that does not mean that the appeal could not be lodged here, but that the notification would be sent so that any liaison about the papers could be done subsequently. That may be easier for the applicant and the appellant. On the wider issue, I should be grateful if the Prime Minister or the Minister in the Committee would let us know the justification for two different sets of civil servants from two Departments dealing in the same process, as I am intrigued. Will the Minister explain why, in 2002, two Departments are in this slightly odd marriage? They may work wonderfully and increasingly well together, but as with health and social services, the time has come to change two into one. Why has that not happened? I would be most grateful if the Minister explained it in a letter.
 Question put and agreed to. 
 Clause 67 ordered to stand part of the Bill.

Clause 68 - Visitor or student without entry clearance

Amendment made: No. 352, in page 36, line 29, at end insert— 
 '( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.—[Ms Rosie Winterton.]
 Clause 68, as amended, ordered to stand part of the Bill.

Clause 69 - Non-family visitor

Angela Eagle: I beg to move amendment No. 292, in page 36, line 35, leave out from 'family' to end of line 36.

Eric Illsley: With this we may take amendment No. 406, in page 36, line 36, leave out paragraph (b).

Angela Eagle: I am pleased to see general support for removing the power to charge a fee for appealing. New regulations abolishing the fee came into effect on 15 May, and we see no need to retain the power to reintroduce it. The effect of both amendments would be to remove paragraph (b), but the Government amendment is the more technically correct. We should all welcome agreement to abolish not just the fee itself, but the power to reinstate it.

Humfrey Malins: I welcome the Government amendment. I accept the gentle rebuke that my amendment was less brilliantly drafted. I agree with the Government and thank them for tabling the amendment. These fees were strongly opposed by several bodies from the outset. I pay tribute to the Immigration Advisory Service for leading the campaign for abolition. It is indeed pleasing to see it in the Bill. I would have had a speech to make if the Government had not tabled their own amendment: I see no great enthusiasm around the Committee for that prospect, so I shall desist, but I have a question. The clause deals with family visitor appeals, so why is it headed ''Non-family visitor''?

Angela Eagle: I thought that the hon. Gentleman might ask such a question. The answer, apparently, is plain English. The clause lists those people who do not have access to appeals. That is why it is headed ''Non-family visitor'' when it is, in fact, about family visitors. I have provided the parliamentary draftsmen's view of plain English and I make no further comment. I hope that I have at least explained why the clause is thus headed.

Simon Hughes: The Minister does us all a service. It is a pity that my late constituent who appeared in ''Yes Minister'' and ''Yes, Prime Minister'' is not present to update us on the latest episode.
 The amendment is welcome. The previous Conservative Government were wicked and evil for introducing charges for appeals. That is not the fault of the hon. Member for Woking, although I cannot remember how he voted and I have not been wicked enough to look.

Humfrey Malins: It is absolutely typical of the hon. Gentleman's generosity to me that he has not checked how I voted, and I am most grateful to him. I have no idea how I voted because it happened a long time ago. It is typical of the hon. Gentleman's spirit that he has not taken me to task.

Simon Hughes: It was 1992, and if a week is a long time in politics, 10 years is certainly a long time.
 The system had unsatisfactory mechanisms and operated discriminatory processes that caused great grief, hardship and difficulties. I was pleased that Liberal Democrat Members, with significant support from Labour Back Benchers and much quieter support from hon. Members of other parties, held a late-night debate on the subject before the last election. Forcing a debate on behalf of my party to challenge the appeal system was one of the most useful things that I have done in the House. Shortly after the debate, a significant Opposition vote, which was supported by Government Back Benchers who rebelled against the Government, led to a reduction of the fees. I am grateful that the Home Secretary was clear and reached the view that it was administrative nonsense to keep a system going using a lower fee, given the impractical and discriminatory nature of the system. Charging a fee at even a lower level might harm people. There was strong and widespread opposition to the system. I shall not trouble the Committee with the details, but the number of appeals reduced significantly when the system was in place. Many people who wanted to attend weddings, funerals, christenings and religious ceremonies were not able to do that, and the review was beneficial. 
 We are grateful for the regulations. I think that I am right in saying that they came into force over the past seven days—

Angela Eagle: On 15 May.

Simon Hughes: This is the first opportunity that the House has had to recognise that, and I unreservedly pay tribute to the current Administration for completing the work that was begun under the previous Administration. I am sorry that we had the battle that we had, but it sometimes takes time for the penny to drop. I hope that many people will benefit from the delay.
 The amendment is welcome and the clause is very positive.

Humfrey Malins: This is entirely my fault, but will the Minister repeat slowly—so that I can either listen to her or write down her words—the reason why a clause that relates to family visits is headed ''Non-family visitor''? If she gives me the answer in Latin, I might understand that more than if it were given in English.

Angela Eagle: First, I thank the hon. Member for Southwark, North and Bermondsey for his comments. Many representations—including a large number from Labour Members—were made about the issue, which focused a lot of minds. The hon. Gentleman should not underestimate quiet opposition. It can be extremely effective, and I am glad that all members of the Committee have welcomed the reintroduction of the appeal, which was part of Labour's 1997 manifesto, and the subsequent final abolition of the charges.
 My Latin is not as good as it used to be, and I know that we are not allowed to use foreign languages—whether alive or dead—in parliamentary Committees. I think that I only got as far as O level Latin, and I am not sure whether that would do the job. I shall explain to the hon. Member for Woking why the clause heading is ''Non-family visitor''. This group of clauses lists those who are exceptions from rights of appeal. Family visitors have a right of appeal, and therefore they are not exceptions. The clause is for non-family visitors, even though we all know that it is about family visitors. I hope that that is absolutely crystal clear to the hon. Gentleman. 
 Amendment agreed to. 
 Amendment made: No. 353, in page 36, line 40, at end insert— 
 '( ) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'. —[Angela Eagle.]
 Clause 69, as amended, ordered to stand part of the Bill.

Clause 70 - Student

Amendment made: No. 354, in page 37, line 8, at end insert— 
 '(2) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'. —[Angela Eagle.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Humfrey Malins: I wonder whether the Minister can explain why the clause, which patently concerns students, is not headed ''Non-Students''.

Angela Eagle: Because it deals with those denied a right of appeal against refusal of entry clearance. The clause is about students—or potential students, who would, I suppose, be non-students. I think that it is all perfectly clear.

Simon Hughes: There is a logic competition going on. The Minister may not have done Latin beyond O-level as did the rest of us, but this is a logic test for us to pass.
 I shall not repeat the hon. Gentleman's question, which posed itself, but I should like to ask a linked question, drawn from constituency experience, about applications made by students. I appreciate that it may be a matter for the Department for Education and Skills rather than the Home Office. We have all heard complaints about dud immigration advisers, and about dud institutions that purport to teach properly and give valid certificates but do not. There are far too many of them around. I have occasionally had cause to deal with such institutions in my constituency, some of which even pretended to be universities and offered exams for certificates and qualifications that did not exist.
 I should be grateful if Ministers, in consultation with colleagues from the Department for Education and Skills, would consider requiring institutions that want to take students from another country to register. People come to this country with very little money and pay such institutions, which fleece them and leave them completely stranded with no qualifications. They often provide lousy teaching, and deal with any disciplinary or administrative matters badly. 
 I have heard of some really unsatisfactory experiences in which people were denied the teaching that they had been offered and courses did not live up to their expectations. That is a bit like the hotel industry in the bad old days, when people went to a resort only to find that the hotel had not been built. This problem is in that league. For me, this is the important issue in relation to students coming to the UK. We have some of the best institutions in the world and offer some of the best courses. Our reputation is among the best, but it is undermined by the rogues and fraudsters. I should be grateful if we could consider how we could deal with that.

Angela Eagle: The Home Office works closely with the DFES in identifying bogus colleges, but the hon. Gentleman is quite right to identify registration or any other action to deal with such colleges as matters for that Department. However, I shall certainly draw his remarks to its attention.
 Clause 70, as amended, ordered to stand part of the Bill.

Clause 71 - Appeal from within United Kingdom: general

Amendments made: No. 355, in page 37, line 13, at end insert 
'under section 10 of this Act'.
 No. 356, in page 37, line 35, leave out paragraph (c) and insert— 
'(c) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom,'.—[Angela Eagle.]
 Clause 71, as amended, ordered to stand part of the Bill.

Clause 72 - Appeal from within United Kingdom: ''third country'' removal

Angela Eagle: I beg to move amendment No. 357, in page 37, line 43, leave out from 'appellant' to 'and' in line 45 and insert
'has claimed that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) as being incompatible with his Convention rights,'.
 The amendment will enable the Secretary of State to certify a human rights claim at any stage in safe third country asylum cases. Current drafting means that the certificate can be issued only after the appellant has 
 already appealed against the asylum decision, which defeats the object of the certificate. The amendment puts that right. 
 Amendment agreed to.

Simon Hughes: I beg to move amendment No. 434, in page 38, line 1, leave out 'in his opinion'.

Eric Illsley: With this it will be convenient to consider amendment No. 407, in page 38, line 2, leave out 'clearly' and insert 'manifestly'.

Simon Hughes: Amendment No. 434 concerns a matter that we have addressed before in another guise. Subsection (1) sets out when people cannot appeal about third country removal, which is another provision in the league of negatives rather than positives. At least it is not a double negative, which I suppose is a consolation.

Angela Eagle: The vast majority of people can appeal, and the logic behind the drafting is that the definitions are the few exceptions to the general right to appeal.

Simon Hughes: I am with the Minister, but there is also subsection (2), in which the negative does not apply and we have the exceptions to the exceptions.
 The Minister amended subsection (2)(a), which defines the first part of the conditions in which subsection (1)—the ''cannot apply'' provision—does not apply. Subsection (2)(b) defines the other conditions, and says that subsection (1) does not apply when 
''the Secretary of State has not certified that in his opinion the claim mentioned in paragraph (a) is clearly unfounded.'' 
Amendment No. 434 would remove the phrase ''his opinion'' and take away the Secretary of State's right to be subjective. Of course, a Secretary of State, who is subject to judicial review, cannot come to an unreasonable opinion. The courts would not interfere if it were an opinion to which a reasonable Secretary of State could have come--that is the usual test. However, many parallel pieces of legislation do not have that additional phrase. Indeed, the sufficient and more usual basis for the decision is that ''the Secretary of State has not certified that the claim is unfounded''. I do not see why we need the additional subjective test. 
 Amendment No. 407 tries to make the definitions as consistent as possible, not just for the lawyers but for us all. The end of the phrase as drafted describes the claim as ''clearly unfounded'', and the amendment would change that to ''manifestly unfounded'', which is again based on previous experience. That is a better option, first because it would retain the current wording for third country certification. In particular, there is plenty of case law for the description ''manifestly unfounded''. Therefore, there are plenty of ways in which adjudicators, tribunals and, ultimately, present and future Secretaries of State can make such a decision. Secondly, I understand that 
 ''manifestly unfounded'' also has a European Union or European Community law basis. It is used regularly in that context and recognised in UK courts. 
 Perhaps the Under-Secretary can explain. I and those to whom I have talked might have failed to spot something, but the provision seems to give wider executive power to the Secretary of State and less opportunity to appeal. I am sure that the hon. Lady accepts that there is no general review power for a decision made at such a level, because the Secretary of State's decision obviously falls outwith review by the adjudicators or the tribunal. 
 I think that I am right to say that review by an adjudicator has existed in the past, when under previous legislation the Secretary of State has been given similar powers to certify cases that were manifestly unfounded. If that has always been so, it is clear that for the first time we are taking away one level of review. However, there may be a more innocent explanation, and I would be happy to hear it. We tabled a probing amendment, but it is based on our concern about the provision.

Humfrey Malins: I rise to speak briefly to amendment No. 407. I am glad to have the support of the hon. Member for Southwark, North and Bermondsey. He has deployed the relevant arguments and I shall not repeat them all. ''Manifestly unfounded'' has a legal meaning under European Community law and it is recognised by our courts. It is comforting to find a legal precedent.
 ''Manifestly unfounded'' has been used over the years, and we have become used to judges interpreting it in a certain way, so why are the Government departing from it to use ''clearly unfounded''? I am not sure whether there is a clear difference between ''manifestly'' and ''clearly''. If there is, I should be pleased to know what it is. I should also be pleased to know why ''clearly'' is used rather the more obvious word ''manifestly''. 
 Concern has been expressed about the phrase, especially if the Bill contains no provision for an independent review by an adjudicator of the Secretary of State's decision that a claim is unfounded. Provision has been made for review by an adjudicator when previous legislation has given the Secretary of State powers to certify cases as manifestly unfounded. If such a power was good enough then, why is it not good enough now? Why is ''clearly'' better than ''manifestly''?

Angela Eagle: I hope that I can reassure Opposition Members that there is no difference between ''manifestly'' and ''clearly''. Both words have the same meaning. There is no difference in their effect, nor is a change in the policy implied by use of the word ''clearly''. ''Manifestly'' is not really in common use. There is an increasing feeling that statute should avoid words that have ceased to be part of everyday speech.
 The debate on the clause reflects some of our earlier debates, in which a great deal of suspicion was expressed about the switch from ''is satisfied'' to 
 ''thinks''. The change of words does not signify an intention to change policy, nor is there a different legal meaning. ''Manifestly unfounded'' in the EU context applies to asylum claims, not human rights claims. There is no direct crossover or implication in the readover from that. 
 To answer the question from the hon. Member for Woking about what might have happened in the past, there has been no previous provision for safe third country cases to be heard by an adjudicator where the human rights claim is clearly unfounded. The cases he mentioned are entirely different; therefore the arrangements are different and they have a different effect. 
 In respect of amendment No. 407, I hope that I have reassured Committee members that the Government are not trying to achieve a narrowing effect by using ''clearly'' rather than ''manifestly''. Anyone who cares to look in a dictionary will see that there is no difference between the meaning of those words. 
 I am not attracted to the idea of leaving out ''in his opinion'', as proposed in amendment No. 434. The Secretary of State cannot make an application ''clearly unfounded'' merely by certifying it. He can say that ''in his opinion'' it is unfounded. Like all administrative actions, the issuing of such a certificate based on the Secretary of State's opinion is the subject of judicial oversight in the courts. That remains the case in respect of the matter under discussion. 
 I hope that those reassurances will enable the hon. Member for Southwark, North and Bermondsey to feel confident enough to withdraw the amendment.

Simon Hughes: I am reassured by the Minister's answer about ''clearly'' and ''manifestly''. I have not checked my thesaurus, but it is clear that those words have the same meaning. I accept the Minister's point that ''clearly'' is the more commonly used word, although many Committee members may consider that it would be nice to have a more consistent application of that principle, and that ''commences'' is another word that could be removed as part of that process. I will take further advice on the point, but it sounds fine, and it is helpful that the Minister has put those comments on the record because the courts can take guidance from them in future.
 I will not press the amendment to a Division. I think that we agree about judicial review, but I want to take advice about the ''in his opinion'' issue. The provision appears to provide a greater opportunity for the Secretary of State to exercise flexibility or wider discretion, although that is as much a technical legal question as it is a lay reading question. However, we will want to return to those matters.

Humfrey Malins: I wish to press the matter a little further. The hon. Member for Southwark, North and Bermondsey appears to have concluded that he wants to withdraw his amendment, and I understand why he might decide to do that, but I have a couple of remarks that I want to put to the Minister. She asserts that ''manifestly'' is not in common use in this country, but that proposition is manifestly untrue—and I have just established that by using the word. She has said that it
 is better English to use a word such as ''clearly'', but earlier today our debate was dominated by whether ''begins'' was preferable to ''commences'', yet commences is all over the Bill. Therefore, her argument is not strong.
 The phrase ''manifestly unfounded'' is recognised by our courts, which is more than can be said for ''clearly unfounded''. The Minister also made it absolutely plain that there is not a scintilla of difference between the two phrases. Therefore, as ''manifestly'' is exactly the same as ''clearly'', there can be no principled objection to accepting amendment No. 407. I think that the Minister is about to be passed a piece of paper that says that there is an objection, but there cannot be an objection, given that our courts know so well the phrase ''manifestly unfounded''.

Angela Eagle: It is manifestly true that the word ''manifestly'' can be used in parlance. My assertion is that, in general, it is not used as much as ''clearly''. Therefore, in the drive to make legislation more understandable—clause 69 provided an excellent example of the arguments in that respect—''manifestly'' has been replaced by ''clearly''.
 The courts have already said that ''manifestly'' means ''clearly'' and ''clearly'' means ''manifestly'', so we are dancing on the head of an even smaller pin than we managed to get ourselves to dance on earlier today. I have assured the Committee that there is no policy difference, and no difference in policy intent, between the phrases ''manifestly unfounded'' and ''clearly unfounded''. That is what Committee members should be concerned about. 
 With that reassurance, I hope that the hon. Gentlemen will see that the point is one of style, not substance, and that the wording will not bear upon whether appeals will be heard. The phrase does not narrow or change the conditions in any way.

Simon Hughes: I reflect that it is happy hour in many pubs up and down the country, not that many of us get to them. The Minister is right that in the league table of matters that should divide us, this one of wording should not be near the top. I do not think that I am softer, less cynical or a bigger pushover than the hon. Member for Woking, but I was persuaded by the Minister's comments. If we can start to use clear English and this is the beginning of a process, I welcome progress and look forward to the wind of change blowing through the rest of legislation.

Angela Eagle: I accept that, but as it has given me such trouble on this Bill, I am not sure that I am still in favour of that.

Simon Hughes: I am sure that, in her moments of calmer reflection, the Minister will realise that progress has been made.
 In the interests of happy hour agreement and conscious of the fact that there is a rather more controversial and important matter coming up that may divide the Committee, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 72, as amended, ordered to stand part of the Bill.

Clause 73 - Appeal from outside United Kingdom: removal

Question proposed, That the clause stand part of the Bill.

Humfrey Malins: Although one of the shortest clauses in the Bill, clause 73 is significant. It states:
 ''A person who is outside the United Kingdom may not appeal under section 60(1) on the ground specified in section 62(1)(g).'' 
That sounds harmless, but several outside bodies including the UNHCR have expressed concern. As we all know, the UNHCR is greatly respected in the field of asylum and immigration. It would not express concern unless it was felt genuinely and strongly. 
 In short, the UNHCR finds much cause for concern in the clause and calls for its deletion. It says that the clause could potentially bar an applicant from appealing on the basis of events that occur after his removal from the UK, and that it is possible that an expression of a well-founded fear of persecution may gain further evidentiary weight from events occurring after removal from the UK. Clause 73 would prohibit applicants in such cases from relying on that to appeal on the ground in clause 62(1)(g). That fear should be addressed and, accordingly, I should like some guidance from Ministers on whether the fears so ably expressed by the UNHCR have merit before I decide how to vote on the clause.

Simon Hughes: Conscious of the time, I will give an example that puts the same question in a different way. In the past, I have made representations on behalf of constituents who have been put on to planes and sent home in error. The authorities have accepted that it was a mistake that the decision was not changed and the message that the people should be kept in this country did not pass down the line. Clause 73 will mean that such people would not be able to appeal at all, whether they started their appeal here and were incorrectly sent abroad during the process, or whether they had a right of appeal that they should have been entitled to exercise when they were here, but were sent away through an administrative error and were therefore barred from exercising it.
 I have practical experience of that. There have been three cases in 20 years—three cases too many—in which people have been wrongly sent back. It is nonsense that people who desperately need their appeal to be heard can be deprived of rights that they need more than anyone else.

Angela Eagle: I hope that I can reassure—
 Sitting suspended. 
 On resuming--

Angela Eagle: Before we were so rudely interrupted, I was about to say that the clause is very simple. It refers to appeals against removal from outside the United Kingdom. People can appeal against removal only if they are about to be removed. If they have already left the country and their asylum claim has been through all its stages and failed, it makes no sense to allow an appeal against removal from outside the country.
 The hon. Member for Southwark, North and Bermondsey referred to three cases of unlawful removal and I have come across one or two. If someone is removed unlawfully, they can return to the United Kingdom and the appeal can be heard in the under the original process. However, we cannot have a surreal situation in which we allow people who have been removed or who are not in the UK to appeal against removal. That would not make sense. I hope that hon. Members accept that and will allow the clause to stand part of the Bill.

Simon Hughes: I understand the logic of the Minister's argument, but I recollect that certainly in one case and perhaps in two there was no option to return. It might be necessary to ensure that an appeal is dealt with even if the appellant is not within the jurisdiction.

Angela Eagle: No.

Simon Hughes: If people cannot physically return—if they were unlawfully kicked out and cannot return—they should not lose their right to appeal because, through no fault of their own, they are outside the jurisdiction.
 The Government are properly engaged in conversation with the new French Interior Minister--I heard the Under-Secretary elaborating on that on ''The World Tonight'' recently--about Sangatte and the channel tunnel. We hope that there will be progress. The hon. Lady has heard me say that there is a logical argument for people having their cases dealt with without entering the jurisdiction in the first place. If we move to a situation in which British officials at Lille, Paris, Brussels, Calais or elsewhere, in addition to those on channel tunnel trains, can deal with asylum seekers who are not yet within the UK because they are on the other side of the channel, presumably the law would have to be changed. I am alerting the Government to the fact that if the Government are considering extra-territorial applications--I think they should and I believe that Europe is moving in that direction--the clause would appear to fly in the face of that policy.

Angela Eagle: Under the Geneva convention, an asylum seeker must be in the country in which they seek protection to claim asylum. The appeal under clause 73 is an appeal against removal. The hon.
 Gentleman is arguing that people who are outside the jurisdiction of the country in which they are claiming asylum should be able to appeal against being removed from a country that they are not in. That simply does not make sense.
 If someone has been removed unlawfully after an appeal has been heard and turned down, or the time limit on making an appeal has expired, or they have decided not to appeal, they can return and continue their appeal from within the jurisdiction. Clause 73 covers all those eventualities and I see no reason to change it. We must not allow people to appeal against being removed from a country that they are not in.

Simon Hughes: I shall reflect and take advice on the Minister's comments. There appears to be a difference of opinion, but for now it is sufficient to leave the matter. I am conscious that we have yet to deal with a few more clauses.
 Question put and agreed to. 
 Clause 73 ordered to stand part of the Bill.

Clause 74 - Earlier right of appeal

Humfrey Malins: I beg to move amendment No. 408, in page 38, line 7, leave out subsection (1).

Eric Illsley: With this it will be convenient to take the following: Government amendment No. 358
 Amendment No. 409, in page 38, line 17, leave out subsections (2), (3) and (4). 
 Government amendment No. 359.

Humfrey Malins: The clause raises a principle that I have alluded to on several occasions earlier in our debates. Many of us have a fundamental feeling about parts of the Bill that the Secretary of State is taking upon himself, his officials and immigration officers powers that ought properly to belong to the judiciary. Never is that more true than in clause 74, which states plainly in subsections (1)(a), (b) and (c) that the Secretary of State or an immigration officer can make a certification that appears to be final. It seems to say that if the Secretary of State—perhaps I would have a bit more confidence if it were just the Secretary of State—or any of his officials or immigration officers simply certify that, in their opinion, the person is seeking an appeal in order to delay his removal, that is the end of it. The person who should decide that is the adjudicator, who is a judicial authority.
 I have lost count of the respected NGOs who have briefed me at length on the subject. The clause is worth a day's debate, because hon. Members from all parties would want to contribute at length from their own experience. I look at the hon. Member for Walthamstow, for example. I know well that his experience and expertise in the field are significant, and if I may say so, his reputation is very high. He is one of many on the Committee who would have something to say on the fundamental issue raised by the amendment, which is that we are moving to a situation in which we shall give the Secretary of State, his junior 
 officials and the immigration service powers that we know should be exercised by the judiciary. The IAS wrote strongly to me on the subject, saying that subsections (1)(a), (b) and (c) raise serious concerns on the grounds of natural justice and threaten basic principles of fairness. 
 The IAS says that the provisions make the Secretary of State judge and jury in his own cause and that it should be for an independent adjudicator and not the Secretary of State to decide whether there is a legitimate purpose for an appeal under the law. The powers are draconian and give the Executive extensive powers to deny rights of appeal against their own immigration decisions to a broad range of people, who may not have access to an independent adjudicator. The grounds on which the Bill provides the Secretary of State power to deny rights of appeal go to substantive issues that are at the heart of the appeal. 
 The Government's position is already protected against unmeritorious appeals by the fact that appellants have to pass a merits test before they are entitled to controlled legal representation to pursue their rights of appeal. Look at subsection (1)(a), which allows the Executive to certify a claim to prevent a right of appeal on the basis 
''that the person was notified of a right to appeal'' 
on the immigration decision currently at issue at the time of another immigration decision. 
 The IAS and others submit that notification of rights to appeal on matters that were not at issue at the time of a previous immigration decision, especially when those matters may not have been contemplated, is extremely unfair. Any number of factors could affect a person's circumstances from one immigration decision to another, including the availability of additional evidence, changing family circumstances and the development of compassionate circumstances. The comments that apply to paragraph (a) apply also to paragraphs (b) and (c), which are the subjects of the amendment. Amendment No. 409 would delete subsections (2), (3) and (4) because similar concerns arise in relation to them as arise in relation to subsection (1). 
 In addition, the provision that the Secretary of State will decide what a person should have included in a previous statement made for a different purpose is alarming. In effect, he is empowered to decide that a person should have included all matters affecting any potential immigration decision in any circumstances at any time. That is likely to lead to statements being drafted in omnibus form, which will have further implications in terms of time and money. 
 I beg the Committee to realise that both the amendment and the whole subject are important. We all know that our asylum system in this country is in need of some reform. The papers tell us of some of the problems in the asylum world, but let it not be thought that the abuse of the system, if there is abuse of the system, is limited to or mainly concerns spurious appeals. People say that judicial review is the great devil, but is it? It is worth pondering that in the past couple of years there have been only about 300 or so 
 judicial review cases per year—we will come on to that—and that more than 50 per cent. of those were allowed. 
 One problem in our asylum system is the Government's inability to enforce their removal decisions, a matter on which we have previously dwelled. One problem is the Government's inability to keep track of asylum seekers. The problems that we see in the newspapers exist further away from the appeal system. By going flat out to restrict appeals and give itself powers, the state is not looking at the problem from the right end of the telescope. In clause 74, the Government are saying, ''We, the Executive, propose to reserve unto ourselves the power to say that a person can or cannot appeal. We are effectively not open to challenge.'' That effectively ties the arms of the judiciary, who are the right people to decide those matters. At the end of the day, is it not right that a free, independent judiciary is utterly to be trusted? 
 A clause that says quite plainly that an official at the Home Office or an immigration officer may make a certification that could have a profound effect on the life of an applicant is very unhealthy. The Government should take it away and think to themselves, ''While seeking a speedy system, how can we ensure the appropriate involvement of the judiciary at every stage, rather than cutting it out and taking on powers that years ago we would have been rightly reluctant to take on?''

Neil Gerrard: Subsection (1)(a) states that a person may not appeal if they have been
''notified of a right to appeal . . . against another immigration decision''. 
I am sure that many of us know of a significant number of constituents who have been represented by someone unscrupulous or, more often, incompetent. They were not informed that a decision had been taken on their case in time to appeal, or they were informed but the representative neglected to submit the papers that would secure an appeal. I have seen several such cases. How will the clause affect such people? The 1999 Act contains a caveat of reasonableness in deciding whether someone should be granted a second appeal. I am worried about what will happen to people who lose their right to a first appeal through no fault of their own, but through the fault of someone incompetent who is dealing with their case. 
 I am not clear which circumstances subsection (1)(b) applies to. It stands to reason that people who bring appeals under section 60, which relates to decisions to remove someone from the United Kingdom and deportation orders, are seeking to delay their removal from the United Kingdom. 
 There is a danger that a clause that denies people the right to appeal via certification will lead to many lawyers seeking judicial review of the decisions. It would be self-defeating to end up substituting a judicial review for an appeal. I have never regarded judicial review as an adequate substitute for a properly heard appeal, as it does not deal with the same issues.

Simon Hughes: The Committee has already heard from two well-respected colleagues. I want to add a comment about our grave unhappiness about the amendment, which in effect seeks to remove the first four subsections. We have properly spent much time on the structure of the process of going to an official, going above the official to an independent adjudicator, and going above the adjudicator to an independent appeal tribunal. The amendment would undermine all that at a stroke. It suddenly allows someone on high to intervene and say, ''Sorry, no more process.''
 For the different reasons given by colleagues, this is one of the most oppressive and authoritarian clauses, and a change that should be resisted in Committee and on the Floor of the House. The provision has all the tell-tale signs: it talks about the opinion of the Secretary of State or, as the hon. Member for Woking said, an immigration officer, so it can be the opinion of the lowest person in the hierarchy as well as the highest. 
 The hon. Member for Walthamstow made the point well. The presumption is that everyone has been properly advised and represented at every stage of the process, but over the years my staff and I have spent hundreds of hours—I have no idea how many—trying to undo failures of advice. People have missed deadlines. They have paid money and been told that their case and appeal have been put in when they have not. In reality, the provision means that there is suddenly no justice for those cases at all, and we are not talking about someone's right to get into the final of ''Pop Idol''. This is about the right of people to stay in a safe country, with their family, and all the other issues. 
 There are various reasons why the provision is unjust. It presumes that the Secretary of State knows best, but someone could have included a case by way of an application or an appeal at a time when that might not have been in their mind or indeed appropriate. Let us consider the list in clause 60(2). There may be one application and one appeal in the pipeline. It may relate to a refusal of leave to enter the UK, because someone was stopped when they arrived at the airport. 
 In fact, circumstances in the place where the person has come from may have changed, and they may wish to adduce a second ground in relation to the appeal, but that is precluded. The Secretary of State or an immigration officer can intervene and say, ''No, you can't raise that. You should have raised it before.'' There is no opportunity for the person to put their case fairly or for an argument to take place. It seems to me, and to those who do this sort of work every day, that the system is suddenly tilted completely in favour of the Government and the state, and against the applicant. 
 We are all trying to be brief because we are unreasonably constrained by the guillotine on the Committee, but various clauses from this point onwards are serious, threatening and worrying. This clause is only the first of them. The presumption that the Secretary of State knows best allows for only a potential form of review, which might at best be 
 undertaken on the papers and without any opportunity for argument. However, a person might be represented by someone who is incapable of putting a case well on the papers. I have seen appalling appeal cases made that have omitted all the best points. I have seen solicitors and other representatives charge money for forms that include only the standard words and give no indication of the facts. That makes it clear that they have never read the papers or taken into account what people have said. 
 The poor people affected, who may speak no English and have no relatives in this country, have to rely on someone in a position of trust and confidence. I am sure that the Minister, in her heart and mind, does not believe that that is a fair system. I ask Ministers, as human beings, to imagine themselves in the position of the applicant and appellant and to realise how oppressive the system is. 
 I hope that the amendment will be accepted now. If it is not, I hope that the Government will return with alternative drafting. Clause 74(1) is so significantly flawed and oppressive that the only solution is to remove it and start again. It is not justified by the Government saying that they want a streamlined system. This is a streamlined, co-ordinated system with absolute power given in many circumstances to a Secretary of State and no proper recourse to someone outside the Executive. It is wrong. It should not be here and it will be resisted all the way.

Rosie Winterton: I have listened carefully to the powerful speeches that have been made. I hope that I can give some reassurance about some of the points. The clause is an important part of setting up a process that is clear from the beginning and avoids multiple applications and the inherent delays in the system that go with them. It is not a great sea change from the present system. The one-stop system has proved successful in encouraging applicants to give their reasons for staying here at an earlier stage and enabling us to deal appropriately with those who save up grounds that cannot succeed in order to delay removal. We can certify such late applications or claims so that a refusal does not currently attract an appeal. We are now building on that system and at the same time making its operation simpler and more consistent.
 Under clause 92 we will be able to require a full statement of grounds from any applicant, not just asylum and human rights claimants. We will be able to make the requirement at any stage during the application. We will try to ensure that the form is clear, easily understood and available to people at the earliest opportunity so that they are aware from the start that this approach will be taken. That will enable us to determine any person's case comprehensively and accurately, in the light of all relevant facts, in one procedure. If our determination is negative it will enable an adjudicator to consider all the relevant issues at one appeal hearing. If the appeal is dismissed it will enable us to remove the person without time-wasting and resource-wasting delays. Many late representations are made simply to delay the inevitable.
 Whereas under the 1999 Act we can certify as late only an application made after a fully determined appeal has taken place, we are extending the concept to people who choose not to appeal, or choose not to comply with the disclosure requirement when had they complied they would have had a right to appeal. Those who comply will have a full opportunity to appeal on asylum or human rights grounds and have a comprehensive review of their case. Those who fail to take the opportunity will run the risk that there will be no appeal against a late claim because it will be certified under this provision. 
 Amendments Nos. 408 and 409 would together delete clause 74. That would render the one-stop system impotent and leave applicants to decide whether they wished to comply. That would be a retrograde step, taking us back to the position before the 1999 Act, when people were able to extend their stay in the UK by making a series of applications and appeals. Amendment No. 408 would allow a person to withdraw his appeal and then appeal on the same grounds later. We do not believe that the appeal system should be open to that kind of manipulation. Of course, an appellant has the right to a full and fair hearing, but there is a responsibility to ensure that we can prosecute the appeal promptly. It is not fair for those who comply with the requirements and ensure that they bring all the grounds of appeal in one go to be frustrated by, and subject to, delays caused by people who are evading the system by withdrawing or abandoning an appeal, or by failing to appeal at all.

Humfrey Malins: If the Secretary of State or his junior official made a certification, what avenue of redress would be open to the applicant?

Rosie Winterton: Judicial review is open to the applicant. Several certifications have occurred under the current system to which there have been very few judicial challenges.

Simon Hughes: What would the Minister's view be if the amendments replaced
''the Secretary of State or an immigration offer'' 
with ''the adjudicator'' or ''the tribunal'', which would mean that the independent judicial authorities would take decisions?

Rosie Winterton: That would take up more of the adjudicator's time. The certification is discretionary and can be changed at any time. I shall give an example that might reassure the hon. Gentleman.

Humfrey Malins: The Minister's objection to the proposal by the hon. Member for Southwark, North and Bermondsey is that it would take up the adjudicator's time. I cannot believe that the Minister means that seriously. Of course it would take up the adjudicator's time, but that could not be a fundamental objection given that so many more adjudicators are being appointed and that time spent by an adjudicator is time saved by the court that hears judicial reviews.

Rosie Winterton: If I can go through more of the explanation, it might become clear why I think that having the process is preferable to not having it, which the amendments would provide for.
 Amendment No. 409 is even more destructive because it would allow applicants to appeal more than once on the same grounds, to ignore any notice issued under clause 92 and to hold back grounds of application and appeal until divulging them was strategically convenient.
 I shall touch briefly on Government amendments Nos. 358 and 359. They provide that the Secretary of State can deny further rights of appeal if appeals have already been brought under clause 60(1). In doing that, the amendments curtail that second or subsequent appeal if issues are raised that could have been raised at an earlier appeal. 
 I shall address other points that were made, and I shall use an example that might paint a picture of how the measure will work. A person who was given leave to enter this country as a visitor from another country might apply for asylum toward the end of that stay. After applying for asylum, the person would be asked to state any additional grounds for the application to remain in the United Kingdom. Let us say that that person's asylum application is refused, and she appeals. At the appeal she says that she is worried about human rights, but that had not been mentioned before. However, all grounds for wanting to stay should have been given under clause 92(4). Therefore, her human rights claim could be considered by the Home Office, certified and refused. She could not appeal against that decision, but she could ask for a judicial review of the decision. If, however, during her appeal she said that circumstances had changed and her brother had been tortured, and that she wished to apply under article 3, the Home Office could reconsider the case and decide not to certify it. 
 If a person has to make a new application because of changing country conditions, we will not certify. The whole idea of making the certification discretionary is that it can be changed at any time during the procedure. It does not have to be seen by an adjudicator in that sense, but it can be changed if there were obviously new reasons why the person could not produce the evidence at the time.

Simon Hughes: I understand the argument. Clearly, there are occasions when discussion is exercised to the benefit of the applicant. That does mean that we must have a law that says that it has to have the right to act to the detriment of the applicant. Of course, people are always in favour of the exceptional circumstances test being used by Secretaries of State when they use their discretion. We are arguing that they should not have the discretion to take away rights that could reasonably be left to the independent authorities.

Rosie Winterton: The hon. Member for Woking referred to the adjudicator. If the new circumstances that I have described were raised during the appeal, the adjudicator could consider them. If there were changing circumstances—and there were good reasons for that—the adjudicator could consider the matter.
 As for someone being poorly represented, the person can appeal out of time to an adjudicator. If that person's explanation were accepted, the application would not be certified.

Neil Gerrard: There is a procedure now whereby people can ask for appeals to be heard out of time. Surely we are not dealing with someone asking for that, but with someone who is told that he cannot appeal on another issue under clause 60. That is not the same.

Rosie Winterton: If the person was appearing before the adjudicator, and it could be shown that the advice that had been given in the first instance was considered to be poor, the adjudicator could consider the evidence within the appeal itself.
 The hon. Member for Southwark, North and Bermondsey referred to new grounds after the initial appeal. It would not be appropriate for a claim to be certified if the facts on which it was based did not exist at the time of the first appeal. There could have been a genuine change of circumstances, for example. I reiterate that certification is discretionary. My hon. Friend the Member for Walthamstow asked about subsection (1)(b). It must be read with subsection (1)(c), which states that 
''in the opinion of the Secretary of State or the immigration officer the person has no other legitimate purpose for seeking to appeal.'' 
With regard to poor representation, if the applicant is refused and wants to put in a new application, certification is discretionary. A new application could be made if it were felt that the legal representation had been poor. That can be put before the caseworker, who has the discretion to say that the application does not have to be certified. I should stress that at any point during the process the immigration officer or caseworker can reconsider certification if it is felt that new evidence should be produced that would overturn the initial decision of certification.

Humfrey Malins: The Minister may correct me if I am wrong, but we are facing the prospect of a matter never getting to an adjudicator. The immigration officer can make a decision contrary to the wishes of the applicant and then make a certification—end of story. Is that not right?

Rosie Winterton: The certification is made if the grounds of the appeal that were not included in the section 92 form are brought up at a later stage. Unless the applicant can show that circumstances have changed, and it was not possible to put that case when the section 92 form was filled in, the caseworker can certify the application.

Mark Lazarowicz: The Minister has just said that if the applicant could not put forward the grounds of an appeal at an earlier stage, the case would be certified. However, the proposals do not provide an opportunity for the applicant to make such an application at an earlier
 stage. That possibility is not set out automatically in the proposals; everything rests on the discretion of the Secretary of State and the immigration officer.

Rosie Winterton: Certification applies once there has been an appeal, or an opportunity to appeal against an earlier decision. The point of that is to enable the appellant to make a fresh application if new evidence has come forward. The process attempts to ensure that all the grounds for appeal are stated in the first instance and, unless the circumstances have changed, it is not possible after the first appeal to raise other matters that could have been raised at that appeal. That does not seem to be unreasonable. The section 92 claim form states very clearly that all matters that need to be taken into consideration at the appeal need to be raised—there is very clear advice on that.
 After the appeal is heard, if other reasons are brought forward that could have been heard at the earlier appeal, the case can be certified unless circumstances have changed. There is always a safeguard that if circumstances have changed, the process would not necessarily lead to certification. Certification is used sparingly, and we shall ensure that it continues to be used under specified guidelines, so that people are aware that it is not to be used lightly. However, it will be used when anything that was relevant to the first appeal should have been raised at the time. Otherwise, we cannot overcome the problems that we face of people giving one reason after another.

Humfrey Malins: I remind the Minister that a power remains a power regardless of whether it is used sparingly. Is she saying that under the clause no certification can apply until the adjudicator has been seized of one set of appeals? I asked earlier whether certification could kick in before the matter ever got near an adjudicator, and I did not receive an answer.

Rosie Winterton: No, certification applies once there has been an appeal or an opportunity to appeal. That is important. That is why I said that the provision would extend to people who choose not to appeal and subsequently want to do so. It is important to state that, if people give reasons for appealing, they must be included at that stage. That overcomes the problem of people giving one reason after another. However, the opportunity to introduce new circumstances is always available, which is an important safeguard.

Simon Hughes: I sense the Minister's difficulty. To put it bluntly, I am sure that she did not dream up the idea.
 We have all referred to cases in which it is not the circumstances that have changed, but the advice and understanding of rights. To put it bluntly again, a person who has received lousy advice from someone who did not know what they were doing may have become the responsibility of an organisation, such as the Refugee Legal Centre or the IAS, that knows what it is doing. That would be precluded. What is the merit in the Government wanting the power for themselves? Surely politics dictates that it is better to leave the 
 decision to the courts, or the Government will get all the flak all the time for all unfair decisions. I do not understand the politics—unless the Government want to become much more unpopular. Surely they do not want to court unpopularity.

Rosie Winterton: We are building on the existing system. We believe that it has been successful, so we want to extend it to other aspects. Keeping the matter in the hands of the Secretary of State or immigration officers allows discretion at any time, and that flexibility is important. This is not a great sea change. In the case of Onibio, the court decided that it was important for the Home Office to make the decision about whether there had been a substantial and material change.
 In deciding whether to certify, the reason a matter was not raised earlier must be considered. If the matter had to be referred to an adjudicator, that would not necessarily deter sequential applications, which can go to the adjudicator each time a new matter is raised. We are building on the system that we already have. The provision is an important part of streamlining the process and making sure that we can hear appeals efficiently and quickly, and hear all the evidence and grounds for appeal at one time. I hope that hon. Members will feel able to support the provision.

Simon Hughes: We are absolutely not persuaded, and I think that on reflection the Ministers will realise that the case is weak. The remedy is to take out the clause and deal with the matter later. Although the hon. Member for Woking is, of course, free to make his own decision, we would rather reserve our arguments for a clause stand part debate than press the matter to a vote now. We are keen to get the provision out of the Bill, and will try to do so to the best of our ability. If we do not succeed tonight, we will pursue the matter elsewhere.

Humfrey Malins: It gets worse. As the debate has proceeded, I have realised, as I suppose I should have done from the beginning, that the clause is really saying that someone may never see an adjudicator at all—turned down, certified, goodbye. That is what the provision boils down to, and no one can deny that. That is bad enough, but when that is coupled with the fact that all the powers of the provision are kept by the Secretary of State unto himself, one remains profoundly unhappy.
 I venture to suggest that if a similar mechanism were inserted into a criminal justice Act in relation to the criminal law of the country, there would be an outcry the likes of which we have never heard before. I also venture to suggest—and this is why I am not going to press my amendment to a vote—that there are many Labour Members who, although they have not said anything, feel profound sympathy with the argument deployed by the Opposition. I do not mean it unkindly, but if given a free vote, those Members would support the amendment. However, there are also Labour Members who have spoken against it. 
 This is an important matter of principle. I shall not put it to the test through my amendment, but I sense a feeling on the Labour Benches that there is merit in 
 much of what has been said. I also sense that the Ministers are defending the clause by saying what they have been instructed to say—I do not use the word ''instructed'' lightly—by their civil servants. Their defence of the civil service position is at best unenthusiastic. The matter is a real mess. We will have to come back to the subject on Report, and when we do I shall look to Labour Members to speak, and to Government Ministers to understand, which by now they surely must, that the clause creates profound problems that they must resolve.

Parmjit Dhanda: I have been listening attentively to what the hon. Gentleman and the hon. Member for Southwark, North and Bermondsey have said. The hon. Gentleman is quite right; these are important issues. He talks almost knowingly about Labour Back-Benchers, but hon. Members from both sides of the House should be present for such a debate. Members of Opposition parties should not be on their own.

Richard Allan: I am here.

Parmjit Dhanda: I see two Liberals but only one Tory.

Humfrey Malins: The hon. Gentleman is a decent Member of Parliament who contributes. I do not know how worthy his comment was of him, as he knows that my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) is unwell.

Parmjit Dhanda: What about the other two?

Humfrey Malins: Well, there we are. An argument is no less an argument because it is put forward by one person. At the moment, it is just me on the Conservative Benches, but that has not always been the case, and perhaps will not always be so. That is about as far as I can usefully go. I accept the gentle chiding of the hon. Gentleman, which was meant in good spirit. I shall file it away for future reference. For the reasons that I have put forward, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendments made: No. 358, in page 38, leave out line 7 and insert— 
 '(1) An appeal under section 60(1) against an immigration decision in respect of a person may not be brought or continued'.
 No. 359, in page 38, leave out from beginning of line 17 to 'if' in line 18 and insert— 
 '(2) An appeal under section 60(1) against an immigration decision in respect of a person may not be brought or continued'.—[Ms Rosie Winterton.]

Humfrey Malins: I beg to move amendment No. 410, in page 39, line 3, at end add—
 '(7) Subsections (1) to (4) do not apply unless the Secretary of State has reasonable grounds to believe that the person has been given legal advice subject to regulation or exemption by the Immigration Services Commissioner.'.

Eric Illsley: With this we may take clause stand part.

Humfrey Malins: This is a brief amendment. It does not overcome the fundamental objections to subsections (1) to (4), but it places on the Secretary of State an obligation, subject only to reasonable belief rather than the need to be satisfied, not to deny rights of appeal unless a person has had access to competent legal advice. It is a minimum safeguard against the abuse of Executive power in the offending provisions.

Simon Hughes: We, too, subscribed to the amendment, which provides a fallback position as an additional safeguard. Speaking on behalf of the 100 per cent. party, my hon. Friend the Member for Sheffield, Hallam and I—there would be more of us if it were allowed, but it has something to do with the unfair electoral system, although that is another debate—believe that the clause as a whole is thoroughly undesirable. The hon. Member for Woking, unusually unfairly, attributed the idea to civil servants. My hon. Friend served on the Committee that considered immigration and asylum legislation three years ago. The idea for increasing consolidation with reduced opportunities for external adjudication emerged from the then Secretary of State. I did not sit on that Committee, and assumed my responsibilities only in the dying days of that Bill's return to the Floor of the House. The previous Home Secretary did not expressly contemplate the sudden replacement of independent legal decision making for Home-Secretary decision making.
 I cannot think of another example, whether in criminal courts, employment or social security tribunals, in which the judicial authorities—in this case, an adjudicating tribunal—have their powers circumscribed by a civil servant or a Minister, thereby preventing the customary independent adjudication. I do not understand any argument for preventing the adjudicator of a tribunal from declaring an abuse of process and disallowing a case. I am against abuse of process, but it should be invoked to deal with those who cause it rather than the victims of it. That is the key issue. 
 My hon. Friend the Member for Sheffield, Hallam and I will divide the Committee on the clause, and if Labour Members cannot support the clause, I hope that they will do themselves, their constituents and the Committee the courtesy of abstaining so that the more widespread discontent can be manifest. 
 This is the last opportunity in Committee for Labour Back Benchers to gain their spurs. I remind many that in the last Parliament, arguments put from the Back Benches one year became the Government view the next. It is often worth being ahead of the Government. Sometimes it is a way of getting into government, and the belief that standing up for what one believes in is a way of ensuring that one stays on the Back Benches is clearly not true. Even nice ladies such as the hon. Member for Stirling (Mrs. McGuire) will not always be in the Whips Office, and there may be a new regime. I hope that there will be some support so that we can show that we do not like the new clause. 
 If we do not remove it from the Bill tonight, I hope that it will be put out soon. I do not believe that it will survive the House of Lords if it gets that far.

Rosie Winterton: On amendment No. 410, we understand the importance of legal advice, which is why we make funding available through the Legal Services Commission and grant aid under clause 87. However, it is up to appellants to decide whether they want to take advice, not for the Secretary of State to force them. The hon. Member for Woking referred earlier to people not going before adjudicators, and in the same way we cannot force people to appeal if they do not want to. Given that the Secretary of State cannot force people to take legal advice, it would be wrong to curtail his powers, as the amendment would.
 I should emphasise that we will be clear on the one-stop notice about how legal advice could be obtained, and amendment No. 410 would create an incentive for people not to seek legal advice or to hide the fact that they were being represented. At best, it would create confusion and at worst it could leave people prey to unscrupulous advisers and mean that people who needed proper representation deliberately set out to avoid it. 
 We are building on a system that exists already. It is not a great sea change to what is happening at the moment. It is up to people to appear, and I should emphasise again that certification applies once there has been an appeal or the opportunity to appeal. If people do not take their opportunity, we cannot force them. The appeal is against an earlier decision and does not apply to the first decision. It is reasonable to expect people to detail the grounds on which they are making an appeal and not to change it, and there is a safeguard in that changed circumstances can be taken into account. 
 I hope that that will reassure hon. Members and that they will feel able to support the clause.

Humfrey Malins: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question put, That the clause, as amended, stand part of the Bill:—
The Committee divided: Ayes 9, Noes 2.

Question accordingly agreed to. 
 Clause 74, as amended, ordered to stand part of the Bill.

Clause 75 - National security, &c.

Eric Illsley: With this it will be convenient to consider amendment No. 412, in page 39, line 20, at end add—
 '( ) In paragraph 2(1) of Schedule 2 of the Access to Justice Act 1999 (Community Legal Service: exceptions to excluded services) after sub-paragraph (j) the following is inserted— 
 ''(k) before the Special Immigration Appeals Commission''.'.

Humfrey Malins: As I doubt whether I will get another chance to do so, I thank you, Mr. Illsley, and your co-Chairman, for your kindness during the course of the Committee, and for the diligent, helpful and pleasant way in which you have chaired it. I wish to thank your Clerks, too, who have also been helpful, as have the staff of Hansard. I say a special thank you to the Ministers for being straightforward with me, and for being so pleasant. It has been a good Committee, and I thank all hon. Members who have contributed.
 I must, however, apologise to the hon. Member for Southwark, North and Bermondsey for not joining him in the last Division. He and I have shared many opinions and arguments, and I have appreciated that. This is the first Committee on which I have sat on the Front Bench, and I have aged more than six months in the past six days. However, it has been a pleasant experience. 
 The clause has problems. It deals with national security, under which umbrella all kinds of mysterious—and sometimes unhappy—things can happen. It raises serious concerns with regard to public policy, civil liberties, relationships with other countries and the unchallenged political opinion of the Secretary of State in person. There is also a threat to freedom of expression, which must be considered. 
 The terms of the clause are very broad. Its effect is to open up immigration control as a convenient tool for political control by the Executive. That argument has been advanced by the Immigration Advisory Service and other respected NGOs. 
 I wish the Minister to tell us what us what is meant by 
''in the interests of the relationship between the United Kingdom and another country''. 
Would investigative journalism into the arms trade be included in that, or the pursuit of individuals on uncorroborated evidence from another country, thereby flouting due criminal legal process and extradition arrangements, or the UK supporting a tyrannical regime in another country? The list of such examples is endless. 
 I wish the Minister to explain the meaning of 
''another reason of a political kind.'' 
That is an horrific little phrase, which needs some form of definition. Has that phrase previously been used in legislation? If it is interpreted broadly, it could apply to an individual who criticises the Government or the Secretary of State personally, or whose questioning of the Government's motives proves to be embarrassing 
 or awkward. To many people, the clause appears to be a fundamental attack on the freedom of speech in a democratic country. 
 The purpose of amendment No. 412 is to ensure that public funding is available for representation before the Special Immigration Appeals Commission. The Law Society, among others, is concerned that public funding is available only on a discretionary basis and that that may have a negative impact on the ability of detainees to secure early and specialist legal advice. Legal representation in such circumstances is essential. 
 The Law Society is aware of one case that was brought before SIAC that had to be conducted on a pro bono basis. In another case, the legal team was offered public funding on an exceptional basis but the amount was equivalent to only a fraction of its actual costs. The lack of funding raises an inequality of arms issue. We must never forget that the Home Office is represented by Treasury counsel with access to much greater resources than the representatives for the appellant.

Simon Hughes: This is an important amendment, and my hon. Friend the Member for Sheffield, Hallam wants to speak to it if time permits.
 I am troubled by the fact that we have so little time. If we get no further than clause 75 because of the time constraints, 18 clauses, three schedules, 13 new clauses and 53 amendments from today's selection list will remain undebated, irrespective of later provisions that cannot be debated. It is a pity that we cannot have the chance properly to explore such important matters. I hope that my hon. Friend will be permitted to make the substantive points and I thank you, Mr. Illsley, and your co-Chairman, the Clerks and all those who have looked after us. It is not your fault or theirs that we have not had the time we wanted to discuss the Bill.

Richard Allan: The clause is entitled ''National security, &c.'' and it is the ''&c.'' with which we have a problem. The national security concept is well understood. In the context of the clause, an individual who has applied at any time for leave to remain or entry clearance to the United Kingdom can be denied the right to appeal through the normal process if that decision was taken on national security grounds. That is clear. The hon. Member for Woking asked whether it appears elsewhere. It appears in clause 4 under the deprivation of citizenship conditions, where it caused equal concern.
 What is new is the phrase in subsection (2)(b), 
''in the interests of the relationship between the United Kingdom and another country'' 
and the one in paragraph (c), 
''desirable for another reason of a political kind.'' 
They smack of the ''Have you ever been a communist?'' test. The wording suggests that if entry clearance is denied on political grounds, the right of appeal can also be denied. 
 We want the Government to clarify what conditions would be political or in the interests of the United Kingdom in relation to another country that do not come under grounds of national security and warrant removal of the right of appeal. If there are grounds for 
 refusal, they could be explored in the appeal. Special procedures apply when there is a need for secrecy, as when national security is involved. We fail to see what individuals would be covered by subsection (2)(b) and (c) who would not also be covered by paragraph (a). For example, if requirements relating to friendship with our allies are based on confidential information, surely that is a national security interest to the UK also. We fail to see why that needs to be defined separately from the UK's national security. If there are political interests that are so serious that they merit the deprivation of an individual's right to appeal, surely they are also national security grounds. We are trying to tease out what is covered by paragraphs (b) and (c) that is not covered by paragraph (a). Our amendment is designed to discover the distinction between the different grounds.

Angela Eagle: I was going to make a pretty little speech about how wonderful the Chairmen have been, because they have been wonderful, but we shall not get round to that because we are dealing with these important issues. I shall see them in the bar later, which is probably the only way of dealing with the matter.
 I want to reassure hon. Members. Clause 75 removes the right of appeal under clause 60(1) if the Secretary of State has decided to exclude or remove a person from the United Kingdom 
''in the interest of national security . . . in the interests of the relationship between the United Kingdom and another country, or''
 where it is 
''desirable for another reason of a political kind.'' 
The hon. Member for Woking waxed lyrical about how appalling that phrasing was. He asked whether such phrases were already in other Acts of Parliament. I can tell him that the Conservative Government put all those phrases into law when they introduced the Immigration Act 1971. They have been there for many years, they are well understood and they work well. 
 The provision does not remove the rights of appeal, but moves them elsewhere. The Special Immigration Appeals Act 1997 moves them to the commission, where sensitive intelligence material can be brought and used as evidence without having to be revealed publicly. 
 I shall explain a couple of the phrases that have existed since the 1971 Act—first, ''relations with another Government''. If someone has committed crimes, or attempted to overthrow the Government of another country or damage its interests, severe damage could be done to relations with that country were the United Kingdom to allow that person entry. Often the information on which a decision not to allow a particular person entry is made will be highly sensitive. The other country might have provided intelligence material to us, or the UK intelligence services might have relevant information that could, if revealed, compromise sources. To remove paragraph (b) from the list of cases that will be heard by SIAC, rather than 
 by the adjudicator, would mean that all information on which a decision is based would have to be put before the adjudicator in a public forum. If that were not possible, the Home Secretary would have to withdraw his decision and permit the person to enter the United Kingdom despite the damage that that may cause to our relations with other countries. It is a well-rehearsed and accepted argument that certain cases have related information that cannot be revealed in public; paragraph (b) addresses that, and its removal would do damage. 
 The phrase, 
''another reason of a political kind'' 
could cover questions of public order, public morality, and a future threat to UK citizens or interests. Previous Home Secretaries have, for example, excluded holocaust deniers, officers of the Ku Klux Klan and a number of religious cultists. Although many such cases will be dealt with on the basis of evidence that is in the public domain, some decisions, particularly those of possible future risk, could be based on sensitive intelligence material, which it would be necessary to hear in SIAC. If paragraph (c) were removed from where it has reasonably sat since the 1971 Act, no appropriate forum would exist for the Home Secretary to expose that sensitive material. He could not oppose an appeal so would have to allow it with all its concomitant damage to UK interests. 
 Amendment No. 412 would bring advocacy before SIAC within the scope of Community Legal Service. The CLS was established by the Access to Justice Act 1999, but SIAC and advocacy proceedings fall outside schedule 2 of the Act. Although the tribunal is outside the scope of the CLS, that is not the end of the matter in terms of an individual receiving public funding for representation. As hon. Members have mentioned, we have exceptional funding circumstances. We are considering what to do about that, and have not yet decided whether we should bring the tribunal within the purview of the Legal Services Commission or continue an exceptional funding regime. I ask the hon. Gentleman to bear it in mind that we have not made a final decision, and that we understand his points. Even now, the exceptional funding regulations allow public funding to be used in order for somebody to be properly represented when they go before SIAC. I therefore hope that amendment No. 411 will be defeated. 
 I also hope that amendment No. 412 will not be pressed, given the assurance that the Lord Chancellor is currently looking at the matter, and given that I have put before the Committee the fact that we know that the matter is important.

Humfrey Malins: Amendment No. 411 will certainly not be defeated, for the simple reason that I beg to ask leave to withdraw it.
 Amendment, by leave, withdrawn.

Eric Illsley: Before I call clause 75 stand part, on behalf of Mr. Hurst and myself, I thank members of the Committee for their kind words about our chairmanship and about the Clerks. By the same
 token, it has been a well-informed and good-natured Committee, and the duties of chairmanship have not been too onerous—indeed, they have been quite pleasant.
 Question proposed, That the clause stand part of the Bill.

Simon Hughes: The clause deals with an important issue. The Minister has made some perfectly reasonable points, but we must be vigilant and ensure that we get such matters right. We may want to come back to the clause at a later stage.
 Question put and agreed to. 
 Clause 75 ordered to stand part of the Bill.

Clause 76 - Other grounds of public good

Humfrey Malins: I beg to move amendment No. 413, in page 39, line 30, leave out paragraph (b).
 The clause excludes cases from attracting a right of appeal when the Secretary of State certifies that a person's exclusion from the UK is conducive to the public good. The clause would allow the Executive to stop an appeal in mid-process. It would operate to end an appeal process without the person involved knowing the case against them, let alone having that case assessed independently. Does the Minister agree that that could be thought an unnecessary intrusion into the jurisdiction of the appellate authorities, their independence and the principles of fairness? Will she tell us what consultation, if any, was conducted with the immigration judiciary? Such a clause should not be introduced without prior consultation with the immigration judiciary. Given that such consultation must have taken place, what was the judiciary's opinion? The clause would prevent a matter seized by the appellate authorities from proceeding, and would make something of a dent in the so-called independence of the appellate process, which is under attack.

Simon Hughes: The hon. Gentleman and I share two objections to the clause. First, once again, it gives the Executive authority. Secondly, it gives a broad range of definitions where it should give very specific reasons that are similar to those in other legislation. We hope that we can get the clause into a proper state either through the amendment or at a later stage.

Angela Eagle: The provision is not new and is rarely used. It is necessary in the very rare cases in which a person arrives in the UK and presents such a danger to the public good that their swift removal is appropriate. The Secretary of State takes those decisions personally, and there must be such a grave threat to the public good that it is important that at his personal direction exclusion or removal can be effected. He certifies that the decision on exclusion or removal is conducive to the public good, or he could direct that such a decision should be made. That is what this is all about.
 In answer to the questions of the hon. Member for Woking, the immigration judiciary has had the opportunity to comment on the Bill, and no adverse comment has been made about the provision, which is because it is largely similar to provisions that already exist. The most recent decision on excluding a person that was judicially reviewed— 
 It being five minutes to Ten o'clock, The Chairman proceeded, pursuant to Sessional Order C [28 June 2001] and the Orders of the Committee [30 April and 9 May 2002], to put forthwith the Question already proposed from the Chair. 
 Amendment negatived. 
 The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Amendment made: No. 360, in page 39, line 34, at end insert— 
 '( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.—[Angela Eagle.]
 Clause 76, as amended, ordered to stand part of the Bill.

Clause 77 - Sections 72, 75 and 76: appeal in progress

Amendment made: No. 361, in page 39, line 36, leave out '72,'.—[Angela Eagle.] 
 Clause 77, as amended, ordered to stand part of the Bill. 
 Clause 78 ordered to stand part of the Bill.

Schedule 4 - The immigration Appeal Tribunal

Amendments made: No. 206, in page 74, line 33, leave out 'shall' and insert 'may'. 
 No. 204, in page 75, line 17, leave out paragraphs 9 and 10 and insert— 
 'The Lord Chancellor— 
 (a) may pay remuneration and allowances to members of the Tribunal, 
 (b) may pay remuneration and allowances to staff of the Tribunal, and 
 (c) may defray expenses of the Tribunal.'.
 No. 205, in page 75, line 34, at end insert— 
 '(2) A person may be appointed by the Lord Chancellor under sub-paragraph (1)(d) only if he has legal or other experience which in the Lord Chancellor's opinion makes him suitable for appointment as a legally qualified member.'.—[Angela Eagle.]
 Schedule 4, as amended, agreed to.

Clause 79 - Appeal to Tribunal

Amendment made: No. 425, in page 40, line 8, at end insert— 
 '(2) A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court for a review of the Tribunal's decision on the ground that the Tribunal made an error of law. 
 (3) Where an application is made under subsection (2)— 
 (a) it shall be determined by a single judge by reference only to written submissions, 
 (b) the judge may affirm or reverse the Tribunal's decision,
(c) the judge's decision shall be final, and 
 (d) if the judge thinks the application had no merit he shall issue a certificate under this paragraph (which shall be dealt with in accordance with Civil Procedure Rules).'.—[Angela Eagle.]
 Clause 79, as amended, ordered to stand part of the Bill.

Clause 80 - Decision

Amendments made: No. 362, in page 40, line 19, leave out from 'the' to 'including' in line 21 and insert 'adjudicator's decision,'. 
 No. 363, in page 40, line 22, leave out 
'date of the decision or arising after the'. 
No. 364, in page 40, line 27, at end insert 
'or which concerns a matter which was relevant to the taking of the decision'.—[Angela Eagle.]
 Clause 80, as amended, ordered to stand part of the Bill. 
 Clauses 81 to 83 ordered to stand part of the Bill.

Clause 84 - Rules

Amendments made: No. 366, in page 41, line 36, leave out 'an appeal' and insert 'proceedings'. 
 No. 367, in page 41, line 37, leave out 'or 79' and insert ', 79 or 81'. 
 No. 368, in page 42, line 24, leave out 
'in accordance with section 64'. 
No. 369, in page 42, line 26, leave out 'or 81'. 
 No. 370, in page 42, line 26, at end insert— 
'( ) may make provision (which may include presumptions) about service;'.
 No. 365, in page 42, line 30, at end insert— 
'( ) may require or enable notice of a determination to be given on behalf of an adjudicator or the Tribunal; 
 ( ) may make provision about the grant of bail by an adjudicator or the Tribunal (which may, in particular, include provision which applies or is similar to any enactment).'.
 No. 426, in page 42, line 30, at end insert— 
 '(2A) Rules under subsection (1)— 
 (a) may enable an adjudicator or the Tribunal to make an award of costs or expenses, 
 (b) may make provision (which may include provision conferring discretion on a court) for the taxation or assessment of costs or expenses,
 (c) may make provision about interest on an award of costs or expenses (which may include provision conferring a discretion or providing for interest to be calculated in accordance with provision made by the rules), 
 (d) may enable an adjudicator or the Tribunal to disallow all or part of a representative's costs or expenses, 
 (e) may enable an adjudicator or the Tribunal to require a representative to pay specified costs or expenses, and 
 (f) shall make provision in respect of proceedings before an adjudicator or the Tribunal which has an effect similar to that of section 79(3)(d) and the Civil Procedure Rules referred to there.'.—[Angela Eagle.]
 Clause 84, as amended, ordered to stand part of the Bill. 
 Clauses 85 to 88 ordered to stand part of the Bill.

Clause 89 - Interpretation

Amendments made: No. 371, in page 43, leave out lines 28 to 30. 
 No. 372, in page 43, line 31, leave out 'that Act' and insert 
'the Immigration Act 1971 (c.77)'.—[Angela Eagle.]
 Clause 89, as amended, ordered to stand part of the Bill. 
 Clause 90 ordered to stand part of the Bill. 
 Schedule 5 agreed to.

Schedule 6 - Immigration and Asylum Appeals: Consequential amendments

Amendments made: No. 384, in page 77, line 7, at end insert— 
 'In paragraph 25 of that Schedule (rules) for ''section 22 of this Act'' substitute ''section 84 of the Nationality, Immigration and Asylum Act 2002 (appeals)''
 In paragraph 29 of that Schedule (bail pending appeal)— 
 (a) in sub-paragraph (1), for the words from ''section'' to ''1999'' substitute ''Part 5 of the Nationality, Immigration and Asylum Act 2002'', and
(b) for the words ''Appeal Tribunal'' substitute, in each place, ''Immigration Appeal Tribunal''.
 In paragraph 2(2) of Schedule 3 to that Act (deportation) for ''section 18 of this Act'' substitute ''section 83 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)''.'
 No. 385, in page 77, line 7, at end insert— 
'Race Relations Act 1976 (c. 74) 
 In section 53(1) (restriction of proceedings) for ''Part IV of the Immigration and Asylum Act 1999'' substitute ''Part 5 of the Nationality, Immigration and Asylum Act 2002'' 
Section 57A (immigration cases) shall be amended as follows— 
 (a) in subsection (1)(a) for ''Part IV of the 1999 Act'' substitute ''Part 5 of the 2002 Act'',
(b) in subsection (5) for the definition of ''the Immigration Acts'' substitute— 
 ''''the Immigration Acts'' has the meaning given by section 123 of the 2002 Act;'',
(c) in that subsection in the definition of ''immigration appellate body'' for ''the 1999 Act'' substitute ''Part 5 of the 2002 Act'',
(d) in that subsection for the definition of ''immigration authority'' substitute—
 ''''immigration authority'' means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance (within the meaning of section 33(1) of the Immigration Act 1971 (c.77));'',
(e) in that subsection in the definition of ''pending'' for ''Part IV of the 1999 Act'' substitute ''Part 5 of the 2002 Act'',
(f) in that subsection in the definition of ''relevant decision'' for ''Part IV of the 1999 Act'' substitute ''Part 5 of the 2002 Act'',
(g) in that subsection in the definition of ''relevant immigration proceedings'' for ''Part IV of the 1999 Act'' substitute ''Part 5 of the 2002 Act'', and
(h) in that subsection for the definition of ''the 1999 Act'' substitute— 
 ''''the 2002 Act'' means the Nationality, Immigration and Asylum Act 2002''.
 In section 62(1)(ba) (persistent discrimination) for ''Part IV of the Immigration and Asylum Act 1999'' substitute ''Part 5 of the Nationality, Immigration and Asylum Act 2002''
 In section 65(7)(b) (help for aggrieved person) for ''Part IV of the Immigration and Asylum Act 1999'' substitute ''Part 5 of the Nationality, Immigration and Asylum Act 2002''
 In section 66 (assistance by Commission)— 
 (a) in subsection (8) for ''Part IV of the Immigration and Asylum Act 1999'' substitute ''Part 5 of the Nationality, Immigration and Asylum Act 2002'', and
(b) in subsection (9) for ''Part IV of the Act of 1999'' substitute ''Part 5 of the Act of 2002''.'.
 No. 386, in page 77, line 19, at end insert— 
 '(2) The following provisions shall apply, with any necessary modifications, in relation to an appeal under this section as they apply in relation to an appeal under section 60(1) of the Nationality, Immigration and Asylum Act 2002— 
 (a) section 3C of the Immigration Act 1971 (c.77) (continuation of leave pending variation decision), 
 (b) section 57 of the Nationality, Immigration and Asylum Act 2002 (no removal while appeal pending), 
 (c) section 62 of that Act (grounds of appeal), 
 (d) section 63 of that Act (matters to be considered), 
 (e) section [Adjudicator: determination of appeal] (determination of appeal), 
 (f) section 83 of that Act (notice of immigration decision), and 
 (g) section 87 of that Act (grants).'.
 No. 387, in page 77, line 19, at end insert— 
 'Section 2A of that Act (human rights) shall cease to have effect.'
 No. 388, in page 77, line 25, at end insert— 
 '(1) The Commission shall treat the appeal as including an appeal against any decision of which the Commission in respect of which the appellant— 
 (a) has a right of appeal under section 60(1) of that Act, and 
 (b) has specified, in accordance with rules under section 5 of this Act, grounds of appeal which comply with section 62 of that Act.'.
 No. 389, in page 77, line 27, leave out 
'to the substance of the decision'. 
No. 390, in page 77, line 28, at end insert 'appealed against'. 
 No. 391, in page 77, line 29, after 'clearance', insert 
'(within the meaning of section 33(1) of the Immigration Act 1971 (c.77))'.
 No. 392, in page 77, line 30, at end insert 
'(under section 10 of the Nationality, Immigration and Asylum Act 2002)'.
 No. 393, in page 77, line 33, at end insert 
'or which concerns a matter which was relevant to the taking of the decision'.
 No. 394, in page 77, line 33, at end insert— 
 'In section 7A of that Act (pending appeal)— 
 (a) subsection (6) shall cease to have effect, and
 (b) in subsection (7) for ''section 62(3) of that Act 1999'' there shall be substituted ''section 75 of the Nationality, Immigration and Asylum Act 2002''.
 Schedule 2 to that Act shall cease to have effect.'
 No. 395, in page 77, line 33, at end insert— 
'Immigration and Asylum Act 1999 (c. 33) 
 In section 23(1) of the Immigration and Asylum Act 1999 (monitoring refusal of entry clearance) for ''section 60(5)'' there shall be substituted ''section 69 or 70 of the Nationality, Immigration and Asylum Act 2002'' 
No. 396, in page 77, line 35, after '27(10)', insert
'of the Anti-terrorism, Crime and Security Act 2001'.—[Angela Eagle.]
 Schedule 6, as amended, agreed to. 
 Clause 91 ordered to stand part of the Bill.

Clause 92 - Requirement to state additional grounds for application

Amendment made: No. 373, in page 45, line 6, after 'taken', insert 'or may be taken'.—[Angela Eagle.] 
 Clause 92, as amended, ordered to stand part of the Bill. 
 Clause 93 disagreed to.

New Clause 1 - Unlawful presence in United Kingdom

'(1) This section applies for the construction of a reference to being in the United Kingdom ''in breach of the immigration laws'' in section 4(2) or (4) or 50(5) of, or Schedule 1 to, the British Nationality Act 1981 (c.61). 
 (2) A person is in the United Kingdom in breach of the immigration laws if (and only if) he— 
 (a) is in the United Kingdom, 
 (b) does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971 (c.77), 
 (c) does not have leave to enter or remain in the United Kingdom (whether or not he previously had leave), 
 (d) is not a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) (person entitled to reside in United Kingdom without leave) (whether or not he was previously a qualified person), 
 (e) is not a family member of a qualified person within the meaning of those regulations (whether or not he was previously a family member of a qualified person), 
 (f) is not entitled to enter and remain in the United Kingdom by virtue of section 8(1) of the Immigration Act 1971 (c.77) (crew) (whether or not he was previously entitled), and 
 (g) does not have the benefit of an exemption under section 8(2) to (4) of that Act (diplomats, soldiers and other special cases) (whether or not he previously had the benefit of an exemption). 
 (3) Section 11(1) of the Immigration Act 1971 (c.77) (person deemed not to be in United Kingdom before disembarkation, while in controlled area or while under immigration control) shall apply for the purposes of this section as it applies for the purposes of that Act. 
 (4) This section shall be treated as always having had effect. 
 (5) This section is without prejudice to the generality of— 
 (a)a reference to being in a place outside the United Kingdom in breach of immigration laws, and
 (b) a reference in a provision other than one specified in subsection (1) to being in the United Kingdom in breach of immigration laws.'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 3 - Accommodation centres: Northern Ireland(No. 1)

'(1) The Secretary of State may not make arrangements under section 14 for the provision of premises in Northern Ireland unless he has consulted the First Minister and the deputy First Minister. 
 (2) The Secretary of State may by order make provision in relation to the education of residents of accommodation centres in Northern Ireland. 
 (3) An order under subsection (2) may, in particular— 
 (a) apply, disapply or modify the effect of an enactment (which may include a provision made by or under Northern Ireland legislation); 
 (b) make provision having an effect similar to the effect of a provision of section 30 or 31.'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 4 - Accommodation centres: Wales

'The Secretary of State may not make arrangements under section 14 for the provision of premises in Wales unless he has consulted the National Assembly for Wales.'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 10 - Withdrawal of support under Part 2

'(1) The Secretary of State may stop providing support for a person under section 15 or 22 if— 
 (a) the Secretary of State suspects that the person or a dependant of his has committed an offence by virtue of section 29, or 
 (b) the person or a dependant of his has failed to comply with directions of the Secretary of State as to the time or manner of travel to accommodation provided under section 15 or 22. 
 (2) The Secretary of State may by regulations specify other circumstances in which he may stop providing support for a person under section 15 or 22. 
 (3) In determining whether or not to provide a person with support or assistance under section 15 or 22 of this Act or section 4, 95 or 98 of the Immigration and Asylum Act 1999 (c.33) (asylum-seeker) the Secretary of State may take into account the fact that— 
 (a) he has withdrawn support from the person by virtue of this section or section 26(4) or (5), or 
 (b) circumstances exist which would have enabled the Secretary of State to withdraw support from the person by virtue of this section had he been receiving support. 
 (4) This section is without prejudice to section 103 of the Immigration and Asylum Act 1999 (c.33) (appeal against refusal to support).'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 11 - Support for asylum-seeker: family with children

'The following shall be substituted for section 122 of the Immigration and Asylum Act 1999 (c.33) (destitute asylum-seeker with child: duty to support)— 
 ''122 Family with children 
 (1) This section applies where a person (''the asylum-seeker'') applies for support under section 95 of this Act or section 15 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres) if— 
 (a) the Secretary of State thinks that the asylum-seeker is eligible for support under either or both of those sections, and 
 (b) the asylum-seeker's household includes a dependant child who is under 18. 
 (2) The Secretary of State must offer the provision of support for the child, as part of the asylum-seeker's household, under one of the sections mentioned in subsection (1). 
 (3) A local authority (or, in Northern Ireland, an authority) may not provide assistance for a child if— 
 (a) the Secretary of State is providing support for the child in accordance with an offer under subsection (2), 
 (b) an offer by the Secretary of State under subsection (2) remains open in respect of the child, or 
 (c) the Secretary of State has agreed that he would make an offer in respect of the child under subsection (2) if an application were made as described in subsection (1). 
 (4) In subsection (3) assistance means assistance under— 
 (a) section 17 of the Children Act 1989 (c.41) (local authority support), 
 (b) section 22 of the Children (Scotland) Act 1995 (c.36) (similar provision for Scotland), or 
 (c) Article 18 of the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)) (similar provision for Northern Ireland). 
 (5) The Secretary of State may by order disapply subsection (3) in specified circumstances. 
 (6) Where subsection (3) ceases to apply to a child because the Secretary of State stops providing support, no local authority may provide assistance for the child except the authority for the area within which the support was provided.''.'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 15 - Detention centres: custodial functions

'(1) The following shall be substituted for section 154(5) of the Immigration and Asylum Act 1999 (c.33) (power to confer functions of detainee custody officers on prison officers and prisoner custody officers)— 
 ''(5) The Secretary of State may confer functions of detainee custody officers on prison officers or prisoner custody officers.''
 (2) The following shall be added at the end of Schedule 11 to that Act (detainee custody officers)— 
 ''Prison officers and prisoner custody officers 
8 A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.'' 
(3) The following shall be added at the end of Schedule 12 to that Act (discipline at detention centre)—
 ''Prison officers and prisoner custody officers 
9 A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.'''— 
 [Angela Eagle.] 
Brought up, read the First and Second time, and added to the Bill. New Clause 18 Arrest by immigration officer

New Clause 18 - Arrest by immigration officer

'The following shall be inserted after section 28A of the Immigration Act 1971 (c.77) (arrest without warrant)— 
 ''28AA 
 Arrest with warrant 
 (1) This section applies if on an application by an immigration officer a justice of the peace is satisfied that there are reasonable grounds for suspecting that a person has committed an offence under— 
 (a) section 24(1)(d), or 
 (b) section 8 of the Asylum and Immigration Act 1996 (c.49) (employment: offence). 
 (2) The justice of the peace may grant a warrant authorising any immigration officer to arrest the person. 
 (3) In the application of this section to Scotland a reference to a justice of the peace shall be treated as a reference to the sheriff or a justice of the peace.'''.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 19 - Adjudicator: determination of appeal

'(1) This section applies on an appeal under section 60(1) or 61. 
 (2) The adjudicator must determine— 
 (a) any matter raised as a ground of appeal (whether or not by virtue of section 63(A1)), and 
 (b) any matter which section 63 requires him to consider. 
 (3) The adjudicator must allow the appeal in so far as he thinks that— 
 (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or 
 (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently. 
 (4) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal. 
 (5) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 20 - Removal: serious criminal

'(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection). 
 (2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is— 
 (a) convicted in the United Kingdom of an offence, and 
 (b) sentenced to a period of imprisonment of at least two years. 
 (3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if— 
 (a) he is convicted outside the United Kingdom of an offence, 
 (b) he is sentenced to a period of imprisonment of at least two years, and 
 (c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence. 
 (4) A presumption under subsection (2) or (3) that a person constitutes a danger to the community is rebuttable by that person. 
 (5) A presumption under subsection (2) or (3) does not apply while an appeal against conviction or sentence— 
 (a) is pending, or 
 (b) could be brought (disregarding the possibility of appeal out of time with leave). 
 (6) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (4) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies. 
 (7) Subsection (8) applies where— 
 (a) a person appeals under section 60, 61 or 79 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c.68) wholly or partly on the ground specified in section 62(1)(g), and 
 (b) the Secretary of State issues a certificate that presumptions under subsection (2) or (3) apply to the person (subject to rebuttal). 
 (8) The adjudicator, Tribunal or Commission hearing the appeal— 
 (a) must begin substantive deliberation on the appeal by considering the certificate, and 
 (b) if in agreement that presumptions under subsection (2) or (3) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in section 62(1)(g). 
 (9) For the purposes of this section— 
 (a) ''the Refugee Convention'' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and 
 (b) a reference to a person who is sentenced to a period of imprisonment does not include a reference to a person who receives a suspended sentence but does include a reference to a person who is sentenced to a period of custody in an institution other than a prison.'.—[Angela Eagle.]
 Brought up, read the First and Second time, and added to the Bill. 
 Bill, as amended, to be reported. 
Committee rose at one minute to Ten o'clock.